United States
Environmental Protection
Agency
Office of Water
4606
EPA 816-R-00-003
January 2000
&EPA WATER SUPPLY
GUIDANCE
MANUAL
-------
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
? WASHINGTON, D.C. 20460
JAN 21 2000
OFFICE OF
WATER
MEMORANDUM
SUBJECT: Transmittal of the Updated Water Supply Guidance Manual
FROM: William R. Diamond, Director f/J ullM^ \ P
Implementation and Assistance Division
TO: Water Management Division Directors
Regions I-X
I would like to take this opportunity to present you with the updated Water Supply
Guidance Manual and to extend a sincere thanks to you and your staff for contributing to the
tremendous effort involved in this process. This compendium captures all of the current policy
and program guidance documents related to the Public Water System Supervision (PWSS)
program in a single place. In using the manual, please keep in mind the importance of keeping
the guidances current and accurate. Updating this manual is a significant undertaking and we'll
need to work closely with you and your staff to continue to update this collection of guidances on
a regular basis. For those of you who have worked with the 1993 version of the manual, Index 3
references the guidance by old WSG number and indicates the new WSG number or that the
guidance has been deleted.
In reviewing this manual, I ask you to take note of how much the drinking water public
health program has evolved! The first version of the manual focused completely on the PWSS
program.and dealt with definitionalissues and rules that were promulgated many years ago. This
versipn includes these older guidances, but also incorporates other efforts such as source water
protection and the Drinking "Water State Revolving Fund. This type of effort drives home the
importance of the investment in the core program as we continue to move the drinking water
program in new directions and'develop greater inter-connection between programs.
I hope that you and your staff will find the manual useful in your everyday tasks. Please
share this manual with other PWSS staff and note that this completely replaces all previous
versions of the manual. You have been given both a binder copy and a CD-ROM version, and it
may also be accessed on the Internet at http://www.epa.gov/safewater.wsg. In working with the
manual, please let us know of any improvements or additional suggestions you have concerning
its organization, content, or overall usefulness. If you have any questions or comments, please
contact me or have your staff contact Stacey Werbiskis at (202) 260-6781.
Attachment
cc: Regional Drinking Water Enforcement Coordinators, Regions I-X
Regional Drinking Water Branch Chiefs, Regions I-X
Internet Address (URL) • http://www.epa.gov
Rtcycltd/Recyclabl* • Printed with Vegetable Oil Based Inks on Recycled Paper (Minmum 30% Postconsumer)
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56 States and Territories
Phil Metzger
Cynthia Puskar
Jan Auerbach, 1MB
Bob Barles, PSB
JimTaft,TAB
Ephraim King, SRB
Jim Westrick, TSC
Connie Musgrove, ORE
Randy Hffl,OG€
Charlene Shaw, OGWDW
Christine O'Brien, Drinking Water Hotline
Resource Center
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WSG INDICES
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
1
6
6A
7
7A
8
8A
10
Subject
Indian Reservations-Distinction Between EPA Jurisdiction
Over Public Water Systems and State Jurisdiction
Hand-Pumped Wells
Status of Water Vending Machines Under P.L. 93-523
Guidelines for Preparation and Review of State Emergency
Plans
Approval of State Programs for Primary Enforcement
Authority Under Subpart B of the Safe Drinking Water Act
Water Hauler
Applicability of Safe Drinking Water Act to Water Haulers
Guidance on Allowable Costs for State PWSS Program Grants
Guidance on Allowable Costs for State PWSS Program Grants
Application of the Safe Drinking Water Act to Persons
Adding Corrosion Reducing Chemicals to Drinking Water
Application of the Safe Drinking Water Act to Persons
Adding Corrosion Reducing Chemicals to Drinking Water
Federal Facilities - Option for State Coverage Under Section
1413 of the Safe Drinking Water Act, As Amended
Guidance on Implementation of the NIPDWRs; 40 CFR
141.31,141.32,141.33, and 142.34
Date
03/01/76
05/17/76
Revised 4/8/98
07/26/76
Revised 11/98
10/29/76
11/29/76
Revised 11/98
12/03/76
11/26/76
12/13/76
03/11/77
12/20/76
12/08/76
Revised 11/98
11/09/77
12/28/77
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 1
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
11
12
12A
13
14
15
16
17
18
ISA
19
19A
20
Subject
Emergency Disinfection of Drinking Water - Boiling, . .
Definition of a Public Water System
May a Community Public Water System Raise the Defense in
an Enforcement Proceeding that it is not a "Public Water
System", Under §1401(4) of the SDWA, Because it Does not
Provide Water for Human Consumption?
Grant Allocation
Guidance for Regional Review of Variance and Exemptions
Granted by the Primacy States Pursuant to the Safe Drinking
Water Act
Question and Answers on Non-Indian Water Supply
Situations
Guidance for Implementation of 40 CFR Part 25 Public
Participation Regulations in State PWSS Program
Guidance for Operation and Maintenance (O&M) Plans for
ICCs
Guidance for the Issuance of Variances and Exemptions
Variances and Exemptions from Maximum Contaminant
Levels under the Safe Drinking Water Act
Illegal Use of Variance/Declaratory Judgment
Methods of Preventing States from Using Illegal Variances
Use of Grant Funds for Data Management Activities
Date
05/08/78
Revised 04/17/98
07/12/78
06/20/78
08/01/78
09/15/78
01/08/79
05/21/79
Revised 11/98
06/20/79
07/13/79
05/21/79
08/21/79
Revised 11/98
08/10/79
01/24/80
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 2
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
21
22
23
24
25
26
27
28
29
30
31
31A
32
33 '
34 '
Subject
Procedures for Rounding-Off Analytical Data to Determine
Compliance with Maximum Contaminant Levels Present in
NIPDWR
Problems Associated with Disinfectant Changes
Indian Policy Implementation Guidance
Policy Against "No Action" Assurances
Direct Implementation Programs - 4 Programmatic Issues
Divisions of Penalties with State and Local Government
Guidance for FY 1987 PWSS Enforcement Agreements
Revised Policy Framework for State/EPA Enforcement
Agreements
Plan for EPA Implementation of the Safe Drinking Water Act
on Interstate Carrier Conveyances
Availability of Exemptions Under Section 14l6(b)(2)(A) of
SDWA, as Amended, (40 CFR 142.55); Information Memo
Guidance for the FY 1988 State/EPA Enforcement
Agreements Process
Guidance for FY 1988 PWSS Enforcement Agreements
Lead Ban — Effective Date and Enforcement
Supplemental Guidance on the Issuance of Administrative
Orders in the PWSS and UIC Programs
Definition of a Non-Transient, Non-Community Water
System
Date
04/06/81
1/27/83
Revised 12/99
11/08/84
11/16/84
01/25/85
10/30/85
08/08/86
08/25/86
10/01/86
02/20/87
03/31/87
06/16/87
04/23/87
08/10/87
09/16/87
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 3
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
35
36
37
37A
37B
38
39
40
41
42
43
44
44A
Subject
Procedures for Issuing Complaints for Penalties for Violations
of PWSS Administrative Orders
Handbook for Special Public Notification for Lead: For Public
Drinking Water Suppliers
Policy on Publicizing Enforcement Activities
Policy on Publicizing Enforcement Activities
Press Release Policy
Enforcement Actions Against Systems Which are
"Intermittent" Violators of the NPDWRs
Coordination with State Officials on the Issuance of Notices
of Violation under Section 1414 of the SDWA
Response to Questions Raised by Region IV Concerning
Public Notification Requirements for the Unregulated
Contaminants
Policy on Regional Response to a State which Decides to
Accept the Five Percent Reduction in its PWSS Program
Grants
Deleted
The SDWA Lead Ban
Scope of Remedial Action Programs in Schools under the
Lead Contamination Control Act of 1988
Lab Certification for Lead Contamination Control Act
(LCCA)
Date
02/23/88
03/88
03/25/88
11/21/85
01/30/85
04/12/88
04/21/88
04/27/88
09/16/88
12/07/88
Revised 06/01/98
03/17/89
Revised 06/98
5/18/89
Revised 07/98
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 4
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSG No.
45
46
47
48
49
50
51
51A
51B
52
53
' i
54
55
Final Guidance on Implementing the Indian Primacy Rule for
the PWSS and UIC Programs
Additional Guidance on Implementing the Indian Primacy
Rule for the PWSS and UIC Programs
Implementation and Enforcement of the Lead Prohibition and
Lead Public Notification Requirements of the Safe Drinking
Water Act in Fiscal Years 1990 and Beyond
General Public Notification for Public Water Systems
Guidance Manual for Compliance with the Filtration and
Disinfection Requirements for Public Water Systems Using
Surface Water Sources
Implementation of Enforcement Provision in the EPA Federal
Facilities Compliance Strategy
Region Vs Approach on Unregulated Contaminant Public
Notification Requirements
Unregulated Contaminant Public Notification Requirements
Clarification of Public Notification Requirements for
Unregulated Contaminants
Response to Charles Mahan Regarding Use of Bottled Water
by Non-Transient Non-Community Water Systems to Achieve
Compliance
Analytical Methods for Compliance and Limited Alternative
Test Procedures Approvals
Multi-Media Settlements of Enforcement Claims
Surface Water Treatment Rule: Implementation Manual
(Including Appendix D)
Date
04/25/89
04/25/89
08/18/89
09/89
10/89
11/15/89
12/01/89
10/04/89
05/07/90
12/14/89
12/27/89
Revised 12/98
02/06/90
03/90
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 -naee 5
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
56
57
58
59
60
61
62
63
64
65
66
66A
67
Change in the PWSS Program's Definition of Timely and
Appropriate Actions
Revised Definition of Significant Noncomplier (SNC) and the
Model for Escalating Responses to Violations for the PWSS
Program
Handbook for EPA Review of State Program Revisions under
New Primacy regulations for the PWSS Program
Deleted
Delegations of Authority for the Public Water System
Supervision Program
Use of Water Treatment Chemicals and Operation of Public
Water Systems During Emergencies
Tracking Compliance with Administrative Orders in the
PWSS and UIC Programs
Final SNC Definition for the TCR and Proposed SNC
Definition for the SWTR
Interim Policy on the Inclusion of Pollution Prevention and
Recycling Provisions in Enforcement Settlements
Final SNC Definition for the SWTR
Policy for Applicability of the SWT Regulation to Seawater
Definitions of Types of Public Water Systems and Populations
Served by Those Systems
Lead and Copper Rule Guidance Manual:
Volume 1: Monitoring
Volume 2: Corrosion, Control and Treatment
Date
04/20/90
05/22/90
06/90
07/23/90
08/06/90
Revised 07/28/97
08/23/90
12/19/90
02/25/91
02/28/91
07/18/91
08/21/91
09/91
09/92
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 6
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSG No.
68
69
70
71
72
73
74
75
76
77
78
79.
80
81
Subject
Final Guidance on Emergency Authority under Section 1431
of the Safe Drinking Water Act
Opportunity for Public Hearing in Conjunction with Filtration
Decisions
Guidance on Enforcement of the Requirements of the Surface
Water Treatment Rule
Final Guidances for State Sampling Waiver Programs
Enforceability of Filtration Determinations Under the SWT
Regulation
Final Comprehensive State Ground Water Protection Program
Guidance
Deleted
Guidance on Section 1 of the Civil Justice Reform Executive
Order No. 12778
Clarification of Lead Service Line Replacement Requirements
in Lead Drinking Water Rule
Guidance and Clarification on the Use of Detection Limits in
Compliance Monitoring
Clarification of Turbidity Requirements for Filtered Systems
under the Surface Water Treatment Rule (SWTR)
Clarification on Chlorination BAT for Cyanide
EPA Indian Policy
New Public Water System Supervision Program Settlement
Penalty Policy
Date
09/27/91
01/03/92
06/26/92
08/25/92
11/30/92
12/92
04/08/93
07/23/93
Revised 06/01/98
12/16/93
02/01/94
03/07/94
03/14/94
05/25/94
Guidance numbers beginning with "H" are from the Hotline Compendium
Tnrfov 1 _ narr^ 7
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January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
WSGNo. Subject Date
82 Requirement for a Public Water System Which Takes Fewer
than Five Total Coliform Samples per Month to Undergo a
Sanitary Survey 06/01/94
83 Corrected Attachment 1 for PWSS Settlement Penalty
Calculation Worksheet 06/14/94
84 State Reporting Guidance for Unregulated Contaminant
Monitoring 08/94
85 Schedule for Reduced Monitoring under the Lead & Copper
Rule 10/20/94
85A Consecutive Systems Regulated Under the National Primary Drinking Water
Regulations for Lead and Copper 1/10/92
86 Processing Requests for Use of Enforcement Discretion 03/03/95
87 All Plastic Systems - Compliance with the Lead and Copper
Rule 04/04/95
88 Deleted
89 Information Collection Requirements Rule - Protozoa and
Enteric Virus Sample Collection Procedures (pocket guide) 06/95
90 Revised Uses, Distribution, and Timing of Indian Land PWSS Grant Funds 06/26/95
91 Policy on Flexible State Enforcement Responses to Small
Community Violations 11/22/95
92 Deleted
93 Federal Register: Part ffl: Vol. 60, No. 246: Notice: Incentives
for Self-Policing: Discovery, Disclosure, Correction and
Prevention of Violations (a.k.a. "The Audit Policy") 12/22/95
94 ICR Manual for Bench and Pilot-Scale Treatment Studies 01/96
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 8
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
Subject
Guidance on the Process for Review of Enforcement Actions
Against Tribal Facilities
DBP/TCR Analytical Methods Manual
ICR Microbial Laboratory Manual
ICR Sampling Manual
ICR Water Utility Database System Users' Guide (manual and
six disks)
ICR Water Utility Database System Users' Guide (instructions
and three disks)
Deleted
Deleted
Federal Register: Part IV: Vol. 61, No. 107: Notice: Policy on
Compliance Incentives for Small Businesses
Release of Final State Alternative Technology Approval
Protocol
ICR Reference Manual: Understanding the ICR
Public Release of EPA Enforcement Information
ICR Laboratory Quality Control (QC) Users' Guide (manual
and five disks)
Drinking Water State Revolving Fund Program Guidelines
ICR Treatment Studies Data Collection Spreadsheets Users'
Guide (manual and four disks)
The Data Sharing Committee's Review of the Total Coliform
Rule Data Needs and Safe Drinking Water Information
System (SDWIS/FED) Reporting Requirements
02/16/96
04/96
04/96
04/96
04/96
09/96
06/03/96
07/11/96
08/96
08/15/96
11/96
02/97
04/97
06/11/97
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 9
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
110
111
112
113
114
115
116
117
•118
119
120
120A
122
Subject i
Delegation of Authorities Under Section 1445 of the 1996
Safe. Drinking Water Act Amendments Regarding Issuance of
Information Requests to Determine Compliance with the Act
Regional Data Management Roles
Alternative Monitoring Guidelines
Requirement for State Administrative Penalty Authority
Under the Safe Drinking Water Act Amendments of 1996
Small System Compliance Technology List for the Surface
Water Treatment Rule
State Methods for Delineating Source Water Protection Areas
for Surface Water Supplied Sources of Drinking Water
State Source Water Assessment and Protection Programs
Guidance
Guidance for Future State Ground Water Protection Grants
Submetering Water Systems
Issuance of Final Supplemental Environmental Projects Policy
The Data Sharing Committee's Review of the SWTR Data
Needs and SDWIS Reporting Requirements
Federal Reporting Data System (FRDS-II) Data Entry
Instructions
Guidance on Federal Facility Penalty Order Authority Under
the Safe Drinking Water Act, as Amended in 1996
Guidance on Implementing the Capacity Development
Provisions of the Safe Drinking Water Act Amendments of
1996
Date
07/07/97
07/29/97
08/97
08/97
08/97
08/97
08/97
08/05/97
03/13/98
04/10/98
4/17/98
01/93
05/29/98
07/98
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 10
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
123
124
125
126
127
128
129
130
131
132
133 ,
133A
134
Subject
Hypothetical State Programs for Ensuring that All New
Community Water Systems and Non-Transient Non-
Community Water Systems Demonstrate Technical,
Managerial and Financial Capacity
Information for the Public on Participating with States in
Preparing Capacity Development Strategies
Information for States on Implementing the Capacity
Development Provisions of die Safe Drinking Water Act
Amendments of 1996
Revised Inventory Reporting Requirements for the Safe
Drinking Water Information System (SDWIS/FED) -
Technical Guidance
Federal Register: Part VI: Vol. 63, No. 150: Notice: SDWA
Section 1401(4) Public Water System Definition as Amended
by 1996 SDWA Amendments
Policy on Cutoff Dates for Submitting Data to SDWIS/FED
Enforcement and Implementation of Section 1417 of the Safe
Drinking Water Act
Analytical Methods Home Page on the Internet
Deleted
Safeguarding Latitude/Longitude Data in SDWIS/FED
Database
Approval of Data Sharing Committee Recommendations for
Lead and Copper
The Data Sharing Committee's Recommendations for Lead
and Copper Rule Violation Reporting
Boiling Water Time for Killing Pathogens
Date
07/98
07/98
07/98
07/10/98
08/5/98
08/11/98
09/24/98
10/01/98
03/23/99
4/01/99
12/29/98
Unknown
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 11
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January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
WSG No. Subject Date
135 EPA Protocol for Participation in a PWSS Program Data
Verification 06/99
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 12
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WSGNo.
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
Subject
Guidances from Hotline Compendium
Date
HI
H2
H3
H4
H5
H6
H7
H8
H9
H10
Hll
H12
HIS
H14
HIS
Determining MCLs for Man-made Radionuclides
Interstate Carriers
Definition of Service Connection
Public Notification Requirements: Supplemental
Notices/Lead
Lead Ban Enforcement
State Enforcement of the NSDWRs
Pipe Fittings Under the Lead Ban
Public Notification Requirements: Lead Notice/Consecutive
Systems
Determination of Vulnerability to VOCs
Scope of NPDWR Coverage
Effective Date of the Lead Ban
Lead Ban Enforcement
Marketing and Advertising Tactics and Techniques (Point of
Use Devices)
Purpose and Applicability of Maximum Contaminant Level
Goals (MCLGs)
Determination of MCLGs and MCLs
09/87
09/87
01/88
02/88
04/88
04/88
05/88
06/88
07/88
07/88
09/88
09/88
09/88
09/88
10/88
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 13
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
H16
H17
HIS
H19
H20
H21
H22
H23
H24
H25
H26
H27
H28
H29 '
H30
H31
Subject
Effect of the Lead Ban on Sale of Plumbing Fixtures
Containing Lead Solder
Household Refrigerators and Lead Contamination
Definition of a PWS (Homes with Individual Wells)
Lead Ban
Lead Ban
Deleted
Meaning of "Human Consumption" and "Graywater Uses" as
it Relates to Public Water Systems
Variances and Administrative Orders
Public Notification Requirements
Corrosion Control Devices and the PWSS Program
Possible Toxicity of Aluminum
Treatment Facilities as Public Water Suppliers
Compliance for Gross Beta Particle Activity
Deleted
Monitoring Requirements for Consecutive Public Water
Systems (Surface Water Treatment Rule)
NTNCWSs and Public Notification for Special Monitoring
Date
10/88
Revised 06/01/98
10/88
12/88
Revised 6/98
12/88
02/89
08/89
08/89
Revised 09/98
10/89
03/90
03/90
03/90
Revised 07/01/98
05/90
Revised 10/98
08/90
Revised 12/99
08/90
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 14
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WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
January 11,2000
WSGNo.
H32
H33
H34
H35
H36
H37
H38
H39
H40
H41
H42
H43
H44
H45
H46
H47
H48
Subject
VOC Monitoring Requirements and the Blending of Separate
Water Supply Sources as a Form of Treatment
State Programs for Laboratory Certification
Repeat Monitoring Requirements for the Total Coliform Rule
Applicability of the SWTR to Seawater Systems
Health Advisory for Zinc
Reporting Confluent Growth on Total Coliform Samples
Secondary MCL Range for Aluminum (this guidance may be
updated)
State Primacy over Federal Facilities
Wilson's Disease and Copper
Deleted
The Effectiveness of Slow Sand Filtration in Total Coliform
Removal
Faucets Interpreted as "Lead Pipe Fittings"
Lead Action Level Versus LCCA Guidance Level
Adverse Health Effects of Lead and Copper from Avenues
Other Than Ingestion
Geographic Distribution of Sample Sites for Lead and Copper
Incremental Service Connections
Laboratory Certification for Water Quality Parameters
Date
08/90
Revised 02/99
12/90
02/91
08/91
Revised 12/99
08/91
08/91
08/91
08/91
08/91
12/91
Revised 12/99
12/91
12/91
07/92
07/92
07/92
07/92
Guidance numbers beginning with "H" are from me Hotline Compendium
Index 1 -page IS
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference of Guidances by Water Supply Guidance Number
WSGNo. Subject Date
H49 Monitoring for Unregulated Contaminants 07/92
H50 Recbrdkeeping Requirements for Radionuclides 07/92
H51 Sodium Requirements for Public Water Supplies 07/92
H52 Variances and Exemptions for Fluoride Revised in the Phase
HRule 07/92
H53 Point-of-Entry (POE) Devices to Comply with the Total Coliform Rule, 12/99
Surface Water Treatment Rule (SWTR), and the Interim Enhanced Surface
Water Treatment Rule (IESWTR)
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 1 - page 16
-------
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
January 11,2000
Date
Issued
(*) indicates guidance is listed in more than one section
ALTERNATIVE TREATMENT TECHNOLOGIES
Release of Final State Alternative Technology Approval Protocol 103
Small System Compliance Technology List for the Surface Water
Treatment Rule 114
07/11/96
08/97
ANALYTICAL REQUIREMENTS/LABORATORY CERTIFICATION
*Procedures for Rounding-Off Analytical Data to Determine Compliance
with Maximum Contaminant Levels Present in NIPDWR.
*Lab Certification for Lead Contamination Control Act (LCCA)
Analytical Methods for Compliance and Limited Alternative
Test Procedures Approvals
*Clarification of Turbidity Requirements for Filtered Systems under
the Surface Water Treatment Rule (SWTR)
Analytical Methods Home Page via the Internet
State Programs for Laboratory Certification
Reporting Confluent Growth on Total Coliform Samples
*Lab Certification for Water Quality Parameters
21
44A
53
78
130
H33
H37
H48
04/06/81
5/18/88
Revised 07/98
12/27/89
Revised 12/98
02/01/94
10/01/98
12/90
8/91
7/92
CAPACITY DEVELOPMENT
Guidance on'Implementing the Capacity Development
Provisions of the Safe Drinking Water Act Amendments of 1996
Guidance numbers beginning with "H" are from the Hotline Compendium
122
07/98
Index 2 - page 1
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January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
Hypothetical State Programs for Ensuring that All New CWSs and
NTNCWSs Demonstrate Technical, Managerial and Financial Capacity
Information for the Public on Participating with States in Preparing
Capacity Development Strategies
Information for States on Implementing the Capacity Development
Provisions of the Safe Drinking Water Act Amendments of 1996
123
124
125
07/98
07/98
07/98
CHEMICALS OTHER THAN LEAD & COPPER
*Procedures for Rounding-Off Analytical Data to Determine Compliance
with Maximum contaminant Levels Present in NIPDWR
*Response to Questions Raised by Region IV Concerning Public
Notification Requirements for the Unregulated Contaminants
*Region V's Approach on Unregulated Contaminant Public
Notification Requirements
•"Unregulated Contaminant Public Notification Requirements
*Clarification of Public Notification Requirements for Unregulated
Contaminants
Final Guidance for State Sampling Waiver Programs
Guidance and Clarification on the Use of Detection Limits in
Compliance Monitoring
Clarification on Chlorination BAT for Cyanide
*State Reporting Guidance for Unregulated Contaminant Monitoring
(this guidance may be updated)
Alternative Monitoring Guidelines
21
40
04/06/81
04/27/88
51
51A
51B
71
77
79
84
12/01/89
10/04/89
05/07/90
08/25/92
12/16/93
03/07/94
08/94
112
08/97
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 2
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
Determination of Vulnerability to VOCs
•Possible Toxicity of Aluminum
VOC Monitoring Requirements and the Blending of Separate
Water Supply Sources as a Form of Treatment
•Secondary MCL Range for Aluminum (this guidance may be updated)
Monitoring for Unregulated Contaminants
•Variances and Exemptions for Fluoride Revised in the Phase n Rule
DIRECT IMPLEMENTATION
Direct Implementation Programs — 4 Programmatic Issues
SGNo.
H9
H26
H32
H38
H49
H52
Date
Issued
07/88
03/90
08/90
Revised 02/99
08/91
07/92
07/92
25
1/25/85
DISINFECTION
•Problems Associated with Disinfection Changes
•Use of Water Treatment Chemicals and Operation of Public Water
Systems During Emergencies
22 01/27/83
Revised 12/99
61 08/06/90
Revised 07/28/97
DRINKING WATER STATE REVOLVING FUND fDWSRF)
Drinking Water State Revolving Fund Program Guidelines
107
02/97
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 3
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
EMERGENCY ACTION AND PLANNING
Guidelines for Preparation and Review of State Emergency
Plans
Emergency Disinfection of Drinking Water - Boiling
*Use of Water Treatment Chemicals and Operation of Public Water
Systems During Emergencies
*Final Guidance on Emergency Authority Under Section 1431 of the Safe
Drinking Water Act
Boiling Water Time for Killing Pathogens
4 10/29/76
11 05/08/78
Revised 04/17/98
61 08/06/90
Revised 07/28/97
68
134
09/27/91
Unknown
ENFORCEMENT
*Approval of State Programs for Primary Enforcement Authority
Under Subpart B of the Safe Drinking Water Act
•"Indian Policy Implementation Guidance
Policy Against "No Action" Assurances
Direct Implementation - 4 Programmatic Issues
Division of Penalties with State and Local Governments
Guidance for FY 1987 PWSS Enforcement Agreements
Revised Policy Framework for State/EPA Enforcement
Agreements
Guidance for the FY 1988 State/EPA Enforcement Agreements Process
5
23
24
25
26
27
28
31
11/29/76
Revised 11/98
11/8/84
11/16/84
01/25/85
10/30/85
08/08/86
08/25/86
03/31/87
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 4
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
Guidance for FY 1988 PWSS Enforcement Agreements
*Lead Ban - Effective Date and Enforcement
Supplemental Guidance on the Issuance of Administrative Orders
in the PWSS and UIC Programs
Procedures for Issuing Complaints for Penalties for Violations
of PWSS Administrative Orders
*Policy on Publicizing Enforcement Activities
*Policy on Publicizing Enforcement Activities
*Press Release Policy
Enforcement Actions Against Systems which are "Intermittent"
Violators of NPDWRs
Coordination with State Officials on the Issuance of Notices
of Violations Under Section 1414 of the SDWA
*TheSDWA Lead Ban
*Implementation and Enforcement of the Lead Prohibition and Lead
Public Notification Requirements of the SDWA in Fiscal Years
1990 and Beyond
""Implementation of Enforcement Provisions in the EPA Federal
Facilities Compliance Strategy
Multi-Media Settlements of Enforcement Claims
Change in the PWSS Program's Definition of Timely and
Appropriate Action
31A
32
33
06/16/87
04/23/87
08/10/87
35
37
37A
37B
02/23/88
03/25/88
11/21/85
01/30/85
38 04/12/88
39 04/21/88
43 . 12/07/88
Revised 06/01/98
47 08/18/89
50 11/15/89
54 02/06/90
56 04/20/90
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 5
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
Revised Definition of Significant Noncomplier (SNC) and the
Model for Escalating Responses to Violators for the PWSS
Program 57
*Delegations of Authority for the Public Water System
Supervision Program 60
Tracking Compliance with Administrative Orders
in the PWSS and UIC Programs 62
*Final SNC Definition for the TCR and Proposed SNC Definition for
theSWTR 63
Interim Policy on the Inclusion of Pollution Prevention and Recycling
Provisions in Enforcement Settlements 64
*Final SNC Definition for the SWTR 65
*Final Guidance on Emergency Authority Under Section 1431 of the Safe
Drinking Water Act 68
*Guidance on Enforcement of the Requirements of the Surface
Water Treatment Rule 70
*Enforceability of Filtration Determinations Under the SWT
Regulation 72
Guidance on Section 1 of the Civil Justice Reform Executive Order No. 12778 75
New Public Water System Supervision Program Settlement Penalty Policy 81
Corrected Attachment 1 for PWSS Settlement Penalty Calculation Worksheet 83
Processing Requests for Use of Enforcement Discretion 86
Policy on Flexible State Enforcement Responses to Small Community
Violations ' 91
05/22/90
07/23/90
08/23/90
12/19/90
02/25/91
02/28/91
09/27/91
06/26/92
11/30/92
04/08/93
05/25/94
06/14/94
03/03/95
11/22/95
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 6
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
Federal Register Notice, Part HI: Incentives for Self-Policing: Discovery,
Disclosure, Correction and Prevention of Violations (a.k.a "The Audit Policy")
*Guidance on the Process for Review of Enforcement Actions Against
Tribal Facilities
Federal Register Notice, Part IV: Policy on Compliance Incentives for
Small Businesses
*Public Release of EPA Enforcement Information
*Delegation of Authorities Under Section 1445 of the 1996 SDWA Amendments
Regarding Issuance of Information to Determine Compliance with the Act
Requirements for State Administrative Penalty Authority under
the SDWA 1996
Issuance of Final Supplemental Environmental Projects Policy
Guidance on Federal Facility Penalty Order Authority Under the SDWA,
as Amended in 1996
*Enforcement and Implementation of Section 1417 of the SDWA
*The Data Sharing Committee's Recommendations for Lead and Copper
Rule Violation Reporting
*Lead Ban Enforcement
State Enforcement of the NSDWRs
*Pipe Fittings Under the Lead Ban
*Effective Date of the Lead Ban
*Lead Ban Enforcement
93
95
102
105
110
12/22/95
02/16/96
06/03/96
08/15/96
07/07/97
113
119
121
129
133A
H5
H6
H7
Hll
H12
08/97
04/10/98
05/29/98
09/24/98
12/29/98
04/88
04/88
05/88
09/88
09/88
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 7
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
*Effect of the Lead Ban on Sale of Plumbing Fixtures Containing Lead Solder H16 04/88
Revised 06/01/98
*LeadBan
H19
12/88
FEDERAL FACILITIES
*Implementation of Enforcement Provisions in the EPA Federal
Facilities Compliance Strategy
Corrosion Control Devices and the PWSS Program
State Primacy over Federal Facilities
50
H25
H39
11/15/89
03/90
08/91
GRANTS
Guidance on Allowable Costs for State PWSS Program Grants
Guidance on Allowable Costs for State PWSS Program Grants
Grant Allocation
Use of Grant Funds for Data Management Activities
*Policy on Regional Response to a State which Decides to Accept
the Five Percent Reduction in its PWSS Program Grant
*Delegations of Authority for the Public Water System
Supervision Program
*Revised Uses, Distribution and Timing of Indian Land PWSS Grant Funds
7
7A
13
20
12/13/76
3/11/77
08/01/78
01/24/80
41
60
90
09/16/88
07/23/90
06/26/95
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 8
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January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
INDIAN LAND ISSUES
"Indian Reservations-Distinction Between EPA Jurisdiction
Over Public Water Systems and State Jurisdiction
"Questions and Answers on Non-Indian Water Supply
Situations
"Indian Policy Implementation Guidance
"Final Guidance on Implementing Primacy Rule for the PWSS
and UIC Programs
"Additional Guidance on Implementing the Indian Primacy Rule
for the PWSS and UIC Programs
"Delegations of Authority for the Public Water System
Supervision Program
"Revised Uses, Distribution and Timing of Indian Land PWSS Grant Funds
"Guidance on the Process for Review of Enforcement Actions
Against Tribal Facilities
1
15
23
45
46
60
90
95
03/01/76
01/08/79
11/8/84
04/25/89
04/25/89
07/23/90
06/26/95
02/16/96
INFORMATION COLLECTION RULE flCRl
Information Collection Requirements Rule—Protozoa and Enteric
Virus Sample Collection Procedures (pocket guide)
ICR Manual for Bench- and Pilot-Scale Treatment Studies
DBP/ICR Analytical Methods Manual
ICR Microbial Laboratory Manual
ICR Sampling Manual
89
94
96
97
98
06/95
01/96
04/96
04/96
04/96
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 9
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January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
ICR Water Utility Database System User's Guide
Manual and 6 disks
Release 1.1: Instructions and 3 disks
ICR Reference Manual: Understanding the ICR
ICR Laboratory Quality Control (QC) Users' Guide (Manual and 5 disks)
ICR Treatment Studies Data Collection Spreadsheets User's Guide
(manual and 4 disks)
99
104
106
04/96
09/96
08/96
11/96
108
04/97
PRETATION OF THE SAFE DRINKING WATER ACT AND RE(
Hand-Pumped Wells
Status of Water Vending Machines Under P.L. 93-523
Water Hauler
Applicability of the Safe Drinking Water Act to Water Haulers
* Application of the SDWA to Persons Adding Corrosion Reducing
Chemicals to Drinking Water
* Application of the SDWA to Persons Adding Corrosion Reducing
Chemicals to Drinking Water
Definition of a Public Water System
May a Community Public Water System Raise the Defense in an Enforcement
Proceeding that it is not a "Public Water System," Under §1401(4) of the SDWA,
Because it Does not Provide Water for Human Consumption?
Definition of a Non-Transient Non-Community Water System
2 05/17/76
Revised 04/08/98
3 07/26/76
Revised 11/98
6
6A
8
8A
12
12A
34
12/03/76
11/26/76
12/20/76
12/08/76
Revised 11/98
07/12/78
06/20/78
09/16/87
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 10
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
Response to Charles Mahan Regarding Use of Bottled Water by
Non-Transient Non-Community Water Systems to Achieve Compliance
*Policy for Applicability of the SWT Regulation to Seawater
Definitions of Types of Public Water Systems and Populations Served
by Those Systems
Submetering Water Systems
Federal Register part VI: Notice: Definition of a Public Water System
in SDWA Section 1401(4) as Amended by the 1996 SDWA Amendments
Definition of Service Connection
Scope of NPDWR Coverage
Purpose and Applicability of Maximum Contaminant Level Goals
(MCLGs)
Determination of MCLGs and MCLs
Definition of a PWS (Homes with Individual Wells)
Meaning of "Human Consumption" and "Graywater Uses" as it
Relates to Public Water Systems
Treatment Facilities as Public Water Suppliers
Health Advisory for Zinc
Incremental Service Connections
Sodium Requirements for Public Water Supplies
52
66
66A
118
12/14/89
7/18/91
08/21/91
03/13/98
127 08/05/98
H3 01/88
H10 07/88
H14 09/88
HIS 10/88
HIS . 12/88
Revised 06/98
H22 08/89
H27 03/90
Revised 07/01/98
H36 08/91
H47 07/92
H51 07/92
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 11
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSG No.
Date
Issued
INTERSTATE CARRIER CONVEYANCES
Guidance for Operation and Maintenance (O&M) Plans for
ICCs
Plan for EPA Implementation of the Safe Drinking Water Act on
Interstate Carrier Conveyances
Interstate Carriers
Scope of NPDWR Coverage
17
06/20/79
29
H2
H10
10/01/86
09/87
07/88
LEAD & COPPER CONTROL ISSUES
* Application of the SDWA to Persons Adding Corrosion Reducing
Chemicals to Drinking Water
*Application of the SDWA to Persons Adding Corrosion Reducing
Chemicals to Drinking Water
*Lead Ban — Effective Date and Enforcement
Handbook for Special Public Notification for Lead: For Public
Drinking Water Suppliers .
*Policy on Regional Response to a State Which Decides to Accept
the Five Percent Reduction in its PWSS Program Grant
*The SDWA Lead Ban
Scope of Remedial Action Programs in Schools Under the Lead
Contamination Control Act of 1988
*Lab Certification for Lead Contamination Control Act (LCCA)
12/20/76
8A 12/08/76
Revised 11/98
32
36
41
04/23/87
03/01/88
09/16/88
43 12/07/88
Revised 06/01/98
44 03/17/89
Revised 06/98
44A 05/18/89
Revised 07/98
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 12
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January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
"Implementation and Enforcement of the Lead Prohibition and Lead
Public Notification Requirement of the SDWA in Fiscal Years 1990
and Beyond
Lead and Copper Rule Guidance Manual:
Volume 1: Monitoring
Volume 2: Corrosion, Control and Treatment
Clarification of Lead Service Line Replacement Requirements
in Lead Drinking Water Rule
Schedule for Reduced Monitoring under the Lead and Copper Rule
Consecutive Systems Regulated Under the National Primary
Drinking Water Regulations for Lead and Copper
All Plastic Systems - Compliance with the Lead and Copper Rule
"Enforcement and Implementation of Section 1417 of the Safe
Drinking Water Act
"Approval of Data Sharing Committee Recommendations for Lead and Copper
*The Data Sharing Committee's Recommendations for Lead and Copper
Rule Violation Reporting
"Public Notification Requirements: Supplemental Notices/Lead
"Lead Ban Enforcement
"Pipe Fittings Under the Lead Ban
"Public Notification Requirements: Lead Notice/Consecutive Systems
"Effective Date of the Lead Ban
"Lead Ban Enforcement
47
67
85
85A
87
08/18/89
09/91
09/92
76 07/23/93
Revised 06/01/98
10/20/94
1/10/92
04/04/95
129
133
133A
H4
H5
H7
H8
Hll
H12
09/24/98
04/01/99
12/29/98
02/88
04/88
05/88
06/88
09/88
09/88
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 13
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
*Effect of the Lead Ban on Sale of Plumbing Fixtures Containing
Lead Solder
Household Refrigerators and Lead Contamination
*Lead Ban
Lead Ban
Wilson's Disease and Copper
Faucets Interpreted as "Lead Pipe Fittings"
Lead Action Level Versus LCCA Guidance Level
Adverse Health Effects of Lead and Copper from Avenues Other Than Ingestion
Geographic Distribution of Sample Sites for Lead and Copper
•"Laboratory Certification for Water Quality Parameters
MICROBIOLOGICAL REGULATIONS
""Problems Associated with Disinfectant Changes
Guidance Manual for Compliance with the Filtration and Disinfection
Requirements for Public Water Systems Using Surface Water Sources
*Surface Water Treatment Rule: Implementation Manual
(Including Appendix D)
*Final SNC Definition for the TCR and Proposed SNC Definition for the SWTR
*Final SNC Definition for the SWTR
•"Policy for Applicability of the SWT Regulation to Seawater
rSGNo.
H16
H17
H19
H20
H40
H43
H44
H45
H46
H48
22
49
55
63 .
65
66
Date
Issued
10/88
Revised 06/01/98
10/88
12/88
02/89
08/91
12/91
12/91
07/92
07/92
07/92
01/27/83
Revised 12/99
10/89
03/90
12/19/90
02/28/91
7/18/91
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2.- page 14
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
*Opportunity for Public Hearing in Conjunction with Filtration Decisions
*Guidance on Enforcement of the Requirements of the Surface
Water Treatment Rule
*Enforceability of Filtration Determinations Under the SWT
Regulation
"Clarification of Turbidity Requirements for Filtered Systems under the
Surface Water Treatment Rule (SWTR)
Requirement for a Public Water System Which Takes Fewer than Five
Total Coliform Samples per Month to Undergo a Sanitary Survey
*The Data Sharing Committee's Review of the Total Coliform Rule
Data Needs and Safe Drinking Water Information System (SDWIS/FED)
Reporting Requirements
*The Data Sharing Committee's Review of the SWTR Data Needs
and SDWIS Reporting Requirements
Determination of MCLGs and MCLs
Repeat Monitoring Requirements for the Total Coliform Rule
Applicability of the SWTR to Seawater Systems
Reporting Confluent Growth on Total Coliform Samples
The Effectiveness of Slow Sand Filtration in Total
Coliform Removal
POINT OF ENTRY DEVICES
Marketing and Advertising Tactics and Techniques
(Point of Use Devices)
69
70
72
78
82
109
01/03/92
06/26/92
11/30/92
02/01/94
06/01/94
06/11/97
120
HIS
H34
H35
04/17/98
10/88
02/91
08/91
Revised 12/99
H37 08/91
H42 12/91
Revised 12/99
H13 09/88
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2-page 15
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
Point-of-Entry Devices to Comply with the Total Coliform Rule, Surface Water
Treatment Rule (SWTR), and the Interim Enhanced Surface Water Treatment
Rule (ffiSWTR)
H53
12/99
PRIMACY
""Indian Reservations - Distinction Between EPA Jurisdiction
Over Public Water Systems and State Jurisdiction
*Approval of State Programs for Primacy Enforcement Authority
under Subpart B of the Safe Drinking Water Act
"•Questions and Answers on Non-Indian Water Supply Situations
*Final Guidance on Implementing the Indian Primacy Rule for the
PWSS and UIC Programs
""Additional Guidance on Implementing the Indian Primacy Rule
for the PWSS and UIC Programs
•"Surface Water Treatment Rule: Implementation Manual
(including Appendix D)
*Delegations of Authority for the Public Water System
Supervision Program
03/01/76
5 11/29/76
Revised 11/98
15
45
46
55
60
01/08/79
04/25/89
04/25/89
03/01/90
07/23/90
PUBLIC INVOLVEMENT
Guidance for Implementation of 40 CFR Part 25 - Public
Participation Regulations in State PWSS Program
•"Policy on Publicizing Enforcement Activities
•"Policy on Publicizing Enforcement Activities
16
37
37A
05/21/79
Revised 11/98
03/25/88
11/21/85
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 16
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January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
Date
Issued
*Press Release Policy
"Opportunity for Public Hearing In Conjunction with
Filtration Decisions
"Public Release of EPA Enforcement Information
37B
69
105
01/30/85
01/03/92
08/15/96
PUBLIC NOTIFICATION
"Guidance on Implementation of the NIPDWRs, 40 CFR 141.31,
141.32,141.33, and 141.34
"Response to Questions Raised by Region IV Concerning Public
Notification Requirements for the Unregulated Contaminants
"Implementation and Enforcement of the Lead Prohibition and Lead
Public Notification Requirement of the SDWA in Fiscal Years 1990
and Beyond
General Public Notification for Public Water Systems
"Region Vs Approach on Unregulated Contaminants Public
Notification Requirements
"Unregulated Contaminant Public Notification Requirements
"Clarification of Public Notification Requirements for Unregulated Contaminants
"Public Notification Requirements: Supplemental Notices/Lead
"Public Notification Requirements: Lead Notice/
Consecutive Systems
Public Notification Requirements
NTNCWSs and Public Notification for Special Monitoring
10
40
12/28/77
04/27/88
47
48
51
51A
51B
H4
H8
H24
H31
08/18/89
09/01/89
12/01/89
10/04/89
05/07/90
02/88
06/88
10/89
08/90
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2-page 17
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
RADIONUCLIDES
Determining MCLs for Man-made Radionuclides
Compliance for Gross Beta Particle Activity
*Recordkeeping Requirements for Radionuclides
WSGNo.
HI
H28
H50
Date
Issued
09/87
05/90
Revised 10/98
07/92
REPORTING. RECORD KEEPING AND DATA MANAGEMENT REQUIREMENTS
*Guidance on Implementation of the NIPDWRs, 40 CFR 141.31,
141.32,141.33, and 141.34
*State Reporting Guidance for Unregulated Contaminant Monitoring
(this guidance may be updated)
*Revised Inventory Reporting Requirements for SDWIS/FED -
Technical Guidance
EPA Protocol for Participation in a PWSS Program Data Verification
*Recordkeeping Requirements for Radionuclides
10
84
126
135
H50
12/28/77
08/94
07/10/98
06/99
07/92
SDWIS
*The Data Sharing Committee's Review of the Total Coliform Rule Data
Needs and SDWIS/FED Reporting Requirements
Regional Data Management Roles
*The Data Sharing Committee's Review of the SWTR Data Needs and
SDWIS Reporting Requirements
Federal Reporting Data System (FRDS-II) Data Entry Instructions
*Revised Inventory Reporting Requirements for SDWIS/FED
- Technical Guidance
109
111
120
120A
126
06/11/97
07/29/97
4/17/98
01/93
07/10/98
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2-page 18
-------
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
January 11,2000
Date
Issued
Policy on Cutoff Dates for Submitting Data to SDWIS/FED 128
Safeguarding Latitude/Longitude Data in SDWIS/FED Database 132
'Approval of Data Sharing Committee Recommendations for Lead and Copper 133
*The Data Sharing Committee's Recommendations for Lead and Copper
Rule Violation Reporting 133A
08/11/98
03/23/99
04/01/99
12/29/98
SURFACE WATER & GROUND WATER
*Opportunity for Public Hearing in Conjunction with
Filtration Decisions
Final Comprehensive State Ground Water Protection Programs Guidance
State Methods for Delineating Source Water Protection Areas for Surface
Water Supplied Sources of Drinking Water
State Source Water Assessment and Protection Program Guidance
Guidance for Future State Ground Water Protection Grants
69
73
115
116
01/03/92
12/92
08/97
08/97
08/05/97
UNREGULATED CONTAMINANTS
'Response to Questions Raised by Region IV Concerning Public
Notification Requirements for the Unregulated Contaminants 40
'Region V's Approach on Unregulated Contaminants Public
Notification Requirements 51
'Unregulated Contaminant Public Notification Requirements 51A
'Clarification of Public Notification Requirements for Unregulated Contaminants 51B
'Possible Toxicity of Aluminum H26
'Secondary MCL Range for Aluminum (this guidance may be updated) H38
04/27/88
12/01/89
10/04/89
05/07/90
03/90
08/91
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 19
-------
WATER SUPPLY GUIDANCE MANUAL LOCATOR
Listing of Guidances by Subject
Subject
WSGNo.
January 11,2000
Date
Issued
Monitoring for Unregulated Contaminants
H49
07/92
VARIANCES AND EXEMPTIONS
Guidance for Regional Review of Variance and Exemptions
Granted by the Primacy States Pursuant to the SDWA
Guidance for the Issuance of Variance and Exemptions
Variances and Exemptions from Maximum Contaminant Levels under the
Safe Drinking Water Act
Illegal Use of Variance/Declaratory Judgement
Methods of Preventing States from Using Illegal Variances
Availability of Exemptions Under Section 1416(b)(2)(A) of
the SDWA as Amended (40 CFR 142.55); Information Memo
*Delegations of Authority for the Public Water System
Supervision Program
Variances and Administrative Orders
"•Variances and Exemptions for Fluoride Revised in the
Phase II Rule
14 09/15/78
18 07/13/79
18A 05/21/79
19 07/21/79
Revised 11/98
19A 08/10/79
30 02/20/87
60 . 07/23/90
H23 08/89
Revised 09/98
H52 07/92
Guidance numbers beginning with "H" are from the Hotline Compendium
Index 2 - page 20
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
OldWSG Subject
2
3
4
5
6
7
7
8
8
9
9
10
11
12
1 3
14 '
15
15
Indian Reservations-Distinction Between EPA Jurisdiction
Over Public Water Systems and State Jurisdiction
Maintenance of Effort Requirement 40 CFR 35.613(d)
Hand-Pumped Wells
Status of Water Vending Machines Under P.L. 93-523
Guidelines for Preparation and Review of State Emergency
Plans
Approval of State Programs for Primary Enforcement
Authority Under Subpart B of the Safe Drinking Water Act
Water Hauler
Applicability of Safe Drinking Water Act to Water Haulers
Guidance on Allowable Costs for State PWSS Program Grants
Guidance on Allowable Costs for State PWSS Program Grants
Application of the SDWA to Persons Adding Corrosion
Reducing Chemicals to Drinking Water
Application of the SDWA to Persons Adding Corrosion
Reducing Chemicals to Drinking Water
Regional Guidance - Emergency Action on Water Supply
Hazards
Deleted from 1993 manual
Scope of State Public Water System Supervision Program
NIPDWRs - Implementation Plan for Federal Facilities
Guidance on Implementation of the NIPDWRs; 40 CFR
141.31, 141.32, 141.33, and 142.34
. State Primacy Over Federal Facilities
Federal Facilities - Option for State Coverage Under Section
1413 of the Safe Drinking Water Act, As Amended
Date
03/01/76
05/12/76
05/17/76
Revised 4/8/98
07/26/76
Revised 11/98
10/29/76
11/29/76
Revised 11/98
12/03/76
11/26/76
12/13/76
03/11/77
12/20/76
12/08/76
Revised 11/98
12/28/76
01/07/77
03/08/77
07/06/77
12/28/77
01/27/78
11/09/77
New
WSGNo.
1
Deleted
2
3
4
5
6
6A
7
7A
8
8A
Deleted
Deleted
Deleted
Deleted
10
Deleted
9
Index 3 - Page 1
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
OldWSG
No.
16
17
17
Subject
18
19
20
21
22
23
23
Emergency Disinfection of Drinking Water - Boiling
Definition of a Public Water System
May a Community Public Water System Raise the Defense in
an Enforcement Proceeding that it is not a "Public Water
System", Under §1401(4) of the SDWA, Because it Does not
Provide Water for Human Consumption?
Grant Allocation
Guidance for Regional Review of Variance and Exemptions
Granted by the Primacy States Pursuant to the Safe Drinking
Water Act
Guidance for Implementation of 40 CFR Part 25 Public
Participation Regulations in State PWSS Program
Guidance for Operation and Maintenance (O&M) Plans for
ICCs
Guidance for the Issuance of Variances and Exemptions
Variances and Exemptions from Maximum Contaminant
Levels under the Safe Drinking Water Act
24 Illegal Use of Variance/Declaratory Judgment
24 Methods of Preventing States from Using Illegal Variances
25 Use of Grant Funds for Data Management Activities
26 Monitoring and Sampling Techniques to Determine Corrosion
Products, Including Lead, in Water Supply Distribution
Systems
27 Problems Associated with Disinfectant Changes
28 Deleted from 1993 manual
29 ' PWSS Program Grants Implementation Guidance
30 Direct Implementation Programs - 4 Programmatic Issues
31 Divisions of Penalties with State and Local Government
Date
05/08/78
Revised 4/17/98
07/12/78
06/20/78
08/01/78
09/15/78
Question and Answers on Non-Indian Water Supply Situations 01/08/79
05/21/79
Revised 11/98
06/20/79
07/13/79
05/21/79
07/21/79 .
Revised 11/98
08/10/79
01/24/80
08/04/82
1/27/83
Revised 12/99
12/23/83
03/20/84
01/25/85
10/30/85
New
WSGNo.
11
12
12A
13
14
15
16
17
18
ISA
19
19A
20
Deleted
22
Deleted
Deleted
25
26
Index 3 - Page 2
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
OldWSG
No.
Subject
32 Guidance for FY 1987 PWSS Enforcement Agreements
33 Revised Policy Framework for State/EPA Enforcement
Agreements
34 Plan for EPA Implementation of the Safe Drinking Water Act
on Interstate Carrier Conveyances
35 Notification and Public Hearing Procedures for SDWA
Section 1414(g) Administrative Orders
36 Availability of Exemptions Under Section 1416(b)(2)(A) of
SDWA, as Amended, (40 CFR 142.55); Information Memo
37 Lead Ban — Effective Date and Enforcement
38 Guidance for the FY 1988 State/EPA Enforcement
Agreements Process
38 Guidance for FY 1988 PWSS Enforcement Agreements
39 Request for Advice on Appropriate Analytical Method to
Determine the Lead Content of Solders
40 Supplemental Guidance on the Issuance of Administrative
Orders in the PWSS and UIC Programs
41 Laboratory Certification for VOCs
42 Definition of a Non-Transient, Non-Community Water System
42A Guidance on the Conduct of Public Hearings Requested in
Conjunction with Proposed PWS Administrative Orders
43 Procedures for Issuing Complaints for Penalties for Violations
of PWSS Administrative Orders
44 Policy on Publicizing Enforcement Activities
44 Policy on Publicizing Enforcement Activities
44 Press Release Policy
45 Enforcement Actions Against Systems Which are
"Intermittent" Violators of the NPDWRs
46 Coordination with State Officials on the Issuance of Notices of
Violation under Section 1414 of the SDWA
Date
08/08/86
08/25/86
10/01/86
02/12/87
02/20/87
04/23/87
03/31/87
06/16/87
07/09/87
08/10/87
09/03/87
09/16/87
02/10/88
02/23/88
03/25/88
11/21/85
01/30/85
04/12/88
New
WSGNo.
27
28
29
Deleted
30
32
31
31A
Deleted
33
Deleted
34
Deleted
35
37
37A
37B
38
04/21/88
39
Index 3 - Page 3
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
Old WSG
No.
Subject
47 Response to Questions Raised by Region IV Concerning
Public Notification Requirements for the Unregulated
Contaminants
48 Guidance for FY1989 PWSS Enforcement Agreements
49 Policy on Regional Response to a State which Decides to
Accept the Five Percent Reduction in its PWSS Program
Grants
50 Response to Telephone Inquiry of Sandra Silva
51 State Implementation and Enforcement of the Lead Prohibition
and Lead Public Notice Requirements of the SDWA — Policy
Guidance (September 30,1988)
52 Response to Region IV letter dated August 26,1988: VOC
Interpretation
53 The SDWA Lead Ban
54 Definition of Detection Limits
55 Scope of Remedial Action Programs in Schools under the
Lead Contamination Control Act of 1988
55 Lab Certification for Lead Contamination Control Act (LCCA)
56 Interim Policy and Procedures for Approval of Volatile
Synthetic Organic Chemicals and Public Notification Primacy
Revisions
57 Final Guidance on Implementing the Indian Primacy Rule for
the PWSS and UIC Programs
58 Additional Guidance on Implementing the Indian Primacy
Rule for the PWSS and UIC Programs
59' ' Guidance for the FY 1990 State/EPA Enforcement
Agreements Process
60 . Limited Alternative Test Procedures for the District of
Columbia
Date
04/27/88
06/02/88
09/16/88
09/21/88
10/04/88
10/24/88
12/07/88
Revised
06/01/98
01/24/89
03/17/89
Revised 06/98
5/18/89
Revised 07/98
03/30/89
04/25/89
04/25/89
06/19/89
07/10/89
New
WSG No.
40
Deleted
41
Deleted
Deleted
Deleted
43
Deleted
44
44A
Deleted
45
46
Deleted
Deleted
Index 3 - Page 4
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
Old WSG Subject Date
No.
61 Implementation and Enforcement of the Lead Prohibition and 08/18/89
Lead Public Notification Requirements of the Safe Drinking
Water Act in Fiscal Years 1990 and Beyond
61A Honorable Victor Fazio, House of Representatives, 10/89
Washington, D.C. (Letter): POE Devices Under the SWT
Rule
62 Implementation of Enforcement Provision in the EPA Federal
Facilities Compliance Strategy
63 Region V's Approach on Unregulated Contaminant Public
Notification Requirements
63 Unregulated Contaminant Public Notification Requirements
64 Response to Charles Mahan Regarding Use of Bottled Water
by Non-Transient Non-Community Water Systems to Achieve
Compliance
65 Regulation of Non-Transient Non-Community Water which
Use Bottled Water for Drinking Purposes
66 Analytical Methods for Compliance and Limited Alternative
Test Procedures Approvals
67 Procedure for Expedited Review of Analytical Methods
Changes under SDWA
68 Change in the PWSS Programs Definition of Timely and
Appropriate Actions
69 Clarification of Public Notification Requirements for
Unregulated Contaminants
70 Revised Definition of Significant Noncomplier (SNC) and the
Model for Escalating Responses to Violations for the PWSS
Program
71 Certified Laboratories' Analyses of Lead in Drinking Water
72 ' Deleted from 1993 Manual
73 Delegations of Authority for the Public Water System
• Supervision Program
74 Guidance for the FY 1991 State - EPA Enforcement 08/02/90
Agreements Process
New
WSG No.
47
Deleted
11/15/89
12/01/89
10/04/89
12/14/89
12/14/89
12/27/89
Revised 12/98
03/90
04/20/90
05/07/90
05/22/90
05/23/90
06/14/90
07/23/90
50
51
51A
52
Deleted
53
Deleted
56
5 IB
57
Deleted
Deleted
60
Deleted
Index 3 - Page 5
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
OldWSG Subject
No.
Date New
WSGNo.
75 Use of Water Treatment Chemicals and Operation of Public 08/06/90 61
Water Systems During Emergencies Revised
07/28/97
76 Tracking Compliance with Administrative Orders in the PWSS 08/23/90 62
and UIC Programs
77 Reporting Enforcement Actions and "Compliance Achieved" 08/31/90 Deleted
toFRDS
78 FINAL Guidance on Reporting to FRDS Violations of the 10/22/90 Deleted
VOC (Phase I) Requirements
79 Reporting Enforcement Actions and "Compliance Achieved" 11/13/90 Deleted
to FRDS
80 Final SNC Definition for the TCR and Proposed SNC 12/19/90 63
Definition for the SWTR
81 SWTR/TCR Extension Agreements and EPA Responsibilities 12/27/90 Deleted
During the Extension Period
82 Final SNC Definition for the SWTR 02/28/91 65
83 FY 1991 Final National Allotments of Public Water Systems 04/11/91 Deleted
Supervision (PWSS) Program and Underground Injection
Control (UIC) Program Grant Funds
84 Final Guidance for the Use of PWSS Grant Funds for Indian 04/26/91 Deleted
Land PWSS Programs
85 Follow-up to the Review of the FRDS-II Grant Eligible Data 05/08/91 Deleted
Elements
86 Policy for Applicability of the SWT Regulation to Seawater 07/18/91 66
86A Definitions of Types of Public Water Systems and Populations 08/21/91 66A
Served by Those Systems
87 Opportunity for Public Hearing in Conjunction with Filtration 01/03/92 Deleted
Decisions
88 Consecutive Systems Regulated Under the National Primary 01/10/92 Deleted
Drinking Water Regulations for Lead and Copper
89 Opportunity for Public Hearing in Conjunction with Filtration 01/03/92 69
Decisions
Index 3 - Page 6
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
Old WSG Subject
No,
90 Consecutive Systems Regulated Under the National Primary
Drinking Water Regulations for Lead and Copper
91 Digestion of Drinking Water Samples Prior to Analysis for
Metals
92 Guidance on Enforcement of the Requirements of the Surface
Water Treatment Rule
93 Enforceability of Filtration Determinations Under the SWT
Regulation
94 Clarification of Lead Service Line Replacement Requirements
in Lead Drinking Water Rule
Date
01/10/92
01/30/92
06/26/92
11/30/92
07/23/93
Revised
06/01/98
New
WSG No.
85A
Deleted
70
72
76
Index 3 - Page 7
-------
January 11,2000
Old WSG Subject
No.
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
Guidances from Hotline Comoendium
H1 Determining MCLs for Man-made Radionuclides
H2 Interstate Carriers
H3 The Meaning of the Word "Regularly" as Used in the
Definition of a NTNCWS
H4 Definition of Service Connection
H5 Public Notification Requirements: Supplemental Notices/Lead
H6 Public Notification Requirements: Special Lead Notice
H7 Lead Detection Test Kits
H8 Lead Detection Test Kits
H9 Lead Ban Enforcement
H10 State Enforcement of the NSDWRs
H11 User Fees for Water Samples
H12 Lab Certification
H13 Pipe Fittings Under the Lead Ban
H14 Public Notification Requirements: Lead Notice/Consecutive
Systems
HIS Determination of Vulnerability to VOCs
H16 Lead Sample Sizes
H17 Scope of NPDWR Coverage
HIS 40 CFR Part 141 Subparts B and G
H19 Effective Date of the Lead Ban
H20 ' Five Percent (5%) Lead Ban Enforcement Withholding
H21 Health Effects of Chlorination
H22 Lead Ban Enforcement
H23 Marketing and Advertising Tactics and Techniques (Point of
use devices)
Date
09/87
09/87
10/87
01/88
02/88
02/88
03/88
03/88
04/88
04/88
04/88
05/88
05/88
06/88
07/88
07/88
07/88
09/88
09/88
09/88
09/88
09/88
09/88
New
WSG No.
HI
H2
Deleted
H3
H4
Deleted
Deleted
Deleted
H5
H6
Deleted
Deleted
H7
H8
H9
Deleted
H10
Deleted
Hll
Deleted
Deleted
H12
H13
Index 3 - Page 8
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
OldWSG Subject
No.
H24 Purpose and Applicability of Maximum Contaminant Level
Goals (MCLGs)
H25 Determination of MCLGs and MCLs
H26 Effect of the Lead Ban on Sale of Plumbing Fixtures
Containing Ldad Solder
H27 Household Refrigerators and Lead Contamination
H28 Public Notification for the Secondary Fluoride MCL
H29 Definition of a PWS (Homes with Individual Wells)
H30 Lead Ban
H31 Lead Ban
H32 NPDWRs and Design and Operating Requirements
H3 3 Points of Compliance
H34 Vulnerability Determinations
H35 Meaning of "Human Consumption" and "Graywater Uses" as
it Relates to Public Water Systems
H36 Variances and Administrative Orders
H37 Public Notification Requirements
H38 State Remediation Under the LCCA
H39 Corrosion Control Devices and the PWSS Program
H40 Mobile Home Parks and Points of Compliance
H41 Possible Toxicity of Aluminum
H42 , Treatment Facilities as Public Water Suppliers
H43 ' Compliance for Gross Beta Particle Activity
H44 Applicability of NSDWRs for Fluoride SMCL Exceedances
Date
09/88
10/88
10/88
Revised
06/01/98
10/88
10/88
12/88
Revised 6/98
12/88
02/89
04/89
04/89
04/89
08/89
08/89
Revised 09/98
10/89
10/89
03/90
03/90
03/90
03/90
Revised
07/01/98
05/90
Revised 10/98
08/90
New
WSGNo.
H14
HIS
H16
H17
Deleted
HIS
H19
H20
Deleted
Deleted
Deleted
H22
H23
H24
Deleted
H25
Deleted
H26
H27
H28
Deleted
Index 3 - Page 9
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
OldWSG
No.
H45
H46
H47
H48
H49
H50
H51
H52
H53
H54
H55
H56
H57
H58
H59
H60
H61
H62
H63
H64 '
H65
H66
H67
Subject
Enforceability Through Monitoring
The Lead Ban in Non-Primacy States
Monitoring Requirements for Consecutive Public Water
Systems (Surface Water Treatment Rule)
NTNCWSs and Public Notification for Special Monitoring
POE Devices and VOC Compliance
Sampling for Total Trihalomethanes (TTHMs)
VOC Monitoring Requirements and the Blending of Separate
Water Supply Sources as a Form of Treatment
VOC Monitoring Requirements for Systems Using Several
Sources on a Rotational Basis
VOC MCL Compliance
VOC Sampling Locations
State Programs for Laboratory Certification
Repeat Monitoring Requirements for the Total Coliform Rule
Applicability of the SWTR to Seawater Systems
Health Advisory for Zinc
Holding Time for Mercury Samples
Reporting Confluent Growth on Total Coliform Samples
Secondary MCL Range for Aluminum (guidance may be
updated)
State Primacy over Federal Facilities
Wilson's Disease and Copper
Disinfection Contact Studies
The Effectiveness of Slow Sand Filtration in Total Coliform
Removal
Faucets Interpreted as "Lead Pipe Fittings"
Lead Action Level Versus LCCA Guidance Level
Date
08/90
08/90
08/90
08/90
08/90
08/90
08/90
Revised 02/99
08/90
08/90
08/90
12/90
02/91
08/91
Revised 12/99
08/91 .
08/91
08/91
08/91
08/91
08/91
12/91
12/91
Revised 12/99
12/91
12/91
New
WSGNo.
Deleted
Deleted
H30
H31
Deleted
Deleted
H32
Deleted
Deleted
Deleted
H33
H34
H35
H36
Deleted
H37
H38
H39
H40
Deleted
H42
H43
H44
Index 3 - Page 10
-------
January 11,2000
WATER SUPPLY GUIDANCE MANUAL INDEX
Reference by "Old" Water Supply Guidance Number1
OldWSG Subject Date New
No. WSGNo.
H68 Tap Water Testing by the Utility After a Customer Requests 12/91 Deleted
Sampling
H69 Adverse Health Effects of Lead and Copper from Avenues 07/92 H45
Other Than Ingestion
H70 Fluoride Monitoring 07/92 Deleted
H71 Geographic Distribution of Sample Sites for Lead and Copper 07/92 H46
. H72 Gross Alpha Screen 07/92 Deleted
H73 Incremental Service Connections 07/92 H47
H74 Laboratory Certification for Water Quality Parameters 07/92 H48
H75 Monitoring for Unregulated Contaminants 07/92 H49
H76 Recordkeeping Requirements for Radionuclides 07/92 H50
H77 Sodium Requirements for Public Water Supplies 07/92 H51
H78 Variances and Exemptions for Fluoride Revised in the Phase n 07/92 H52
Rule
1. Note: There are some breaks in the order of the new WSG numbers because new guidances have been
added and deleted since the 1993 manual.
Index3-Page 11
-------
January 11,2000
Summary of New Guidances in the WSG Manual
WSG No.
21
23
24
36
48
49
54
55
58
64
67
68
71
73
75
77
78
79'
80
81
Date
4/6/81
11/8/84
11/16/84
3/1/88
9/1/89
10/89
2/6/90
3/90
"6/90
2/25/91
9/9 1& 9/92
9/27/91
8/25/92
12/92
4/8/93
12/16/93
2/1/94
3/7/94
3/14/94
5/25/94
Procedures for Rounding-Off Analytical Data to Determine Compliance with
Maximum Contaminant Levels Present in NEPDWR
Indian Policy Implementation Guidance
Policy Against "No Action" Assurances
Handbook for Special Public Notification for Lead: For Public Drinking Water
Suppliers
General Public Notification for Public Water Systems
Guidance Manual for Compliance with the Filtration and Disinfection
Requirements for Public Water Systems Using Surface Water Sources
Multi-Media Settlements of Enforcement Claims
Surface Water Treatment Rule: Implementation Manual (Including Appendix D)
Handbook for EPA Review of State Program Revisions under New Primacy
Regulations for the PWSS Program
Interim Policy on the Inclusion of Pollution Prevention and Recycling Provisions
in Enforcement Settlements
Lead and Copper Rule Guidance Manual: Volumes 1 and 2
Final Guidance on Emergency Authority under Section 1431 of the Safe
Drinking Water Act
Final Guidances for State Sampling Waiver Programs
Final Comprehensive State Ground Water Protection Program Guidance
Guidance on Section 1 of the Civil Justice Reform Executive Order No. 12778
Guidance and Clarification on the Use of Detection Limits in Compliance
Monitoring
Clarification of Turbidity Requirements for Filtered Systems under the Surface
Water Treatment Rule
Clarification on Chlorination BAT for Cyanide
EPA Indian Policy
New Public Water System Supervision Program Settlement Penalty Policy
82
6/1/94
Requirement for a Public Water System Which Takes Fewer than Five Total
Coliform Samples per Month to Undergo a Sanitary Survey
Index 4 - Page 1
-------
January 11,2000
Summary of New Guidances in the WSG Manual
WSGNo. Date
83
84
85
85A
86
87
89
90
91
93
94
95
96
97
98
99
102
103
104
105
106 '
107
108
6/14/94
8/94 ,
10/20/94
1/10/92
3/3/95
4/4/95
6/95
6/26/95
11/22/95
12/22/95
1/96
2/16/96
4/96
4/96
4/96
4/96 & 9/96
6/3/96
7/11/96
8/96
8/15/96
11/96
2/97
4/97
Subject
Corrected Attachment 1 for PWSS Settlement Penalty Calculation Worksheet
State Reporting Guidance for Unregulated Contaminant Monitoring
Schedule for Reduced Monitoring under the Lead & Copper Rule
Consecutive Systems Regulated Under the National Primary Drinking Water
Regulations for Lead and Copper
Processing Requests for Use of Enforcement Discretion
All Plastic Systems - Compliance with the Lead and Copper Rule
Information Collection Requirements Rule - Protozoa and Enteric Virus Sample
Collection Procedures (pocket guide)
Revised Uses, Distribution, and Timing of Indian Land PWSS Grant Funds
Policy on Flexible State Enforcement Responses to Small Community Violations
Federal Register Part HI: Incentives for Self-Policing: Discovery, Disclosure,
Correction and Prevention of Violations (a.k.a. "The Audit Policy"
ICR Manual for Bench and Pilot-Scale Treatment Studies
Guidance on the Process for Review of Enforcement Actions Against Tribal
Facilities
DBP/ICR Analytical Methods Manual
ICR Microbial Laboratory Manual
ICR Sampling Manual
ICR Water Utility Database System Users' Guide (manual & 6 disks - 4/96,
instructions and 3 disks - 9/96)
Federal Register Part IV: Policy on Compliance Incentives for Small Businesses;
Notice
Release of Final State Alternative Technology Approval Protocol
ICR Reference Manual: Understanding the ICR
Public Release of EPA Enforcement Information
ICR Laboratory Quality Control User's Guide (manual and 5 disks)
Drinking Water State Revolving Fund Program Guidelines
ICR Treatment Studies Data Collection Spreadsheets Users' Guide (manual and
4 disks)
Index 4 - Page 2
-------
January 11,2000
Summary of New Guidances in the WSG Manual
WSG No.
109
110
111
112
113
114
115
116
117
118
119
120
120A
121
Date
6/11/97
7/7/97
7/29/97
8/97
8/97
8/97
8/97
8/97
8/5/97
3/13/98
4/10/98
4/17/98
1/93
5/29/98
122
123
124
125
126
7/98
7/98
7/98
7/98
7/10/98
Subject
The Data Sharing Committee's Review of the Total Coliform Rule Data Needs
and Safe Drinking Water Information System (SDWIS/FED) Reporting
Requirements
Delegation of Authorities Under Section 1445 of the 1996 Safe Drinking Water
Act Amendments Regarding Issuance of Information Requests to Determine
Compliance with the Act
Regional Data Management Roles
Alternative Monitoring Guidelines
Requirement for State Administrative Penalty Authority Under the Safe Drinking
Water Act Amendments of 1996
Small System Compliance Technology List for the Surface Water Treatment
Rule
State Methods for Delineating Source Water Protection Areas for Surface Water
Supplied Sources of Drinking Water
State Source Water Assessment and Protection Programs Guidance
Guidance for Future State Ground Water Protection Grants
Submetering Water Systems
Issuance of Final Supplemental Environmental Projects Policy
The Data Sharing Committee's Review of the SWTR Data Needs and SDWIS
Reporting Requirements
Federal Reporting Data System (FRDS-II) Data Entry Instructions
Guidance on Federal Facility Penalty Order Authority Under the Safe Drinking
Water Act, as amended in 1996
Guidance on Implementing the Capacity Development Provisions of the SDWA
Amendments of 1996
Hypothetical State Programs for Ensuring that All New Community Water
Systems and NTNCWSs Demonstrate Technical, Managerial and Financial
Capacity
Information for the Public on Participating with States in Preparing Capacity
Development Strategies
Information for States on Implementing the Capacity Development Provisions
of the SDWA Amendments of 1996
Revised Inventory Reporting Requirements for SDWIS/FEl) - Technical
Guidance
Index 4 - Pace 3
-------
January 11,2000
Summary of New Guidances in the WSG Manual
WSGNo. Date
127 8/5/98 Federal Register Part VI: SDWA Section 1401(4) Public Water System
Definition as Amended by 1996 SDWA Amendments; Notice
128 8/11/98 Policy on Cutoff Dates for Submitting Data to SDWIS/FED
129 9/24/98 Enforcement and Implementation of Section 1417 of the Safe Drinking Water
Act
130 10/1/98 Analytical Methods Home Page on the Internet
132 3/23/99 Safeguarding Latitude/Longitude Data in SDWIS/FED Database
133 4/1/99 Approval of Data Sharing Committee Recommendations for Lead and Copper
133A 12/29/98 The Data Sharing Committee's Recommendations for Lead and Copper Rule
Violation Reporting
134 Unknown Boiling Water Time for Killing Pathogens
135 6/99 EPA Protocol for Participation in a PWSS Program Data Verification
H53 .12/99 Point-of-Entry (POE) Devices to Comply with the Total Coliform Rule, Surface
Water Treatment Rule (SWTR) and Interim Enhanced Surface Water Treatment
Rule (IESWTR)
Index 4 - Page 4
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Index 5
Guidance Documents Not Included in This Manual
To order the guidances not included in this manual, first obtain the following information:
• the name of the publication;
• its EPA publication number; and
• the source of the publication, and the publication number for that source.
EPA distributes up to 10 free copies of each publication to each customer through the Water
Resource Center (WRC) and the National Service Center for Environmental Publications
(NSCEP, formerly NCEPI) until those supplies run out. Then customers can order them for a fee
from the clearinghouses National Technical Information Service (NTIS) and Educational
Resources Information Center (ERIC). You can send an e-mail order to any of those sources, or
call them at:
• ERIC: ericse@osu.edu: 800-276-0462
• NSCEP: ncepi.mail(g>.epa.gov: 800-490-9198
• NTIS: orders@ntis.fedworld.gov. 800-553-6847
• WRC: center. water-resource@,epa.gov. 202-260-7786
You can also contact the Safe Drinking Water Hotline at (800) 426-4791 for more information.
Index 5
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WSG 1-10
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG1
Date Signed: March 1976
MEMORANDUM
SUBJECT: Indian Reservations-Distinction between EPA
Jurisdiction over Public Water Systems and State Jurisdiction
FROM: Victor J. Kimm, Deputy Assistant Administrator
for Water Supply (WH-550)
TO: Regional Water Supply Representatives
The question of the definition of water supplies on Indian lands for which a State will be
responsible has been raised. This memorandum sets forth our interpretation of the intent of the
regulations and the factor that determines whether the State or EPA will have primary
enforcement authority.
Section 142.3(b)(2) National Interim Primary Drinking Water Regulations
Implementation, states that "In order to qualify for primary enforcement responsibility, a State's
program for enforcement of primary drinking water regulations must apply to all other public
water systems in the State except for public water systems on Indian land with respect to which
the State does not have the necessary jurisdiction or its jurisdiction is in question". The purpose
of this sub-section is to require State responsibility only for public water systems in areas where
the State has the necessary jurisdiction. If the State does not have the necessary jurisdiction, then
EPA is required to provide the surveillance in these areas.
The determining factor is not who owns or operates the water system, but who has the
necessary jurisdiction over that particular area. If a State claims jurisdiction over a particular
reservation, that State will be responsible for providing surveillance over all public water systems
within that reservation within the State. The list of reservations over which a State claims
jurisdiction will be obtained from their program grant application.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG2
Date Signed: May 17,1976
Revised: April 8,1998
Revised by: Jennifer Melch
MEMORANDUM
SUBJECT: Hand-pumped Wells
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division, Office of Water Supply (WH-550)
TO: Water Division Directors
The South Atlantic Division, Corps of Engineers, has asked for an interpretation of the
term "public water supply" as it applies to hand-pumped wells. The Water Quality Division,
Office of General Counsel, has advised us that subject to certain conditions, hand-pumped wells
are public water systems within the meaning of Section 1401(4) of the PHS Act, as amended by
the Safe Drinking Water Act.
Section 1401(4) defines a public water system as "a system for the provision to the public
of water for human consumption, through pipes or other constructed conveyances if such system
has at least fifteen service connections or regularly1 serves at least twenty-five individuals." The
House Committee on Interstate and Foreign Commerce Report accompanying the SDWA states
that this definition "encompasses nearly all public accommodations, such as restaurants, motels,
and trailer parks which serve the public." (Report No. 93-1185, at 16.)
Despite this broad definition though, a hand pumped well must be a "system" and it must
provide water for human consumption through pipes or other construction conveyances" in order
to be included in the basic definition of a public water system.
Although the term "piped water for human consumption" is not defined in the Act, hand
pumped wells are designed to bring water from underground sources to the surface through a
pipe. In many instances, it can be assumed that this water will be used for human consumption.
Inasmuch as Congress defined public water systems alternatively in terms of physical size (at
least fifteen service connections) or public use (regularly serve at least twenty-five individuals),
it is apparent that Congress did not intend to preclude a water source with one service connection
'The regulations under the SDWA explain the term "regular" by stating that a public water
system must have at least fifteen service connections or regularly serve an average of twenty-five
individuals daily at least sixty days out of the year. 40 CFR 35.603(c), 41 F.R. 2913, Jan. 20,
1976.
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WSG2
(presumably a hand pump) so long as that source regularly serves at least twenty-five persons.
This interpretation is borne out by the House Committee's concern with small systems in
recreational parks and at highway rest stops (House Report, at 5).
Furthermore, the purpose of the Safe Drinking Water Act is to assure a safe supply of
water to the public. Whether drinking water is supplied to the public by means of a hand
pumped well, a sink at a gas station, or a drinking fountain in a park would seem to be irrelevant
in light of this purpose.
Similarly, although a hand pumped well is not a sophisticated apparatus, it should
nonetheless be interpreted to be a "system" in light of the above-noted legislative history and the
overall purpose of the Act. Congress sought to protect the public from unsafe drinking water and
whether that water is supplied through a simple or complex mechanism should not be pertinent.
By definition, it is not pertinent if a "system" has fifteen service connections or one service
connection, so long as it regularly serves twenty-five individuals.
The vast majority of hand pumped wells are presumably "non-community systems", i.e.
they regularly serve fewer than twenty-five year around residents. Non-community water
systems may be either transient (TNCWS) or nontransient (NTNCWS). A TNCWS serves a
population that is not stable over a six month period (e.g. campgrounds, rest stops). A NTNCWS
serves a fairly stable nonresidential population over at least a six month period (e.g. schools, day
care centers, factories).
Monitoring requirements for noncommunity water systems vary depending upon type of
noncommunity water system and upon whether the contaminant is acute or chronic. NTNCWS
must monitor for the same contaminants as community water systems. [40 CFR 141.23].
However, TNCWS need only monitor for acute contaminants (e.g. coliform, nitrate).
However, Section 1416 of the Act would allow an existing hand pumped system to be
exempted from any maximum contaminant level or treatment technique requirement upon a
showing of economic hardship and that the exemption will not result in an unreasonable risk to
the public health. Public notice under Section 142.16 of the Regulations would be required for
such an exemption.
If a hand pumped well does not regularly serve twenty-five individuals daily at least sixty
days out of the year, it is not a public water system as defined in the Regulations under the
SDWA.
With these conditions in mind, hand pumped wells are public water systems within the
meaning of Section 1401(4) of the Act.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG3
Date Signed: July 26,1976
Revised: November 1998
Revised by: Wendy Warren
MEMORANDUM
SUBJECT: Status of Water Vending Machines Under
Public Law 93-523
FROM: Victor J. Kimm (signed by Victor J. Kimm)
Deputy Assistant Administrator for Water Supply (WH-550)
TO: Regional Water Supply Representatives
Background
Region IV has asked that we determine the status of water vending machines under P.L. 93-523.
Brochures were enclosed describing a unit which provided filtration and ultraviolet disinfection.
Water was then dispensed into the customer's own container when a coin operation mechanism
was cycled.
The definition of a public water system as given by Section 141.2(e) of the NIPDWR is:
"The public water system" means a system for the provision to the public of piped water
for human consumption, through pipes or other constructed conveyances if such a system
has at least fifteen service connections or regularly1 serves at least twenty-five individuals
daily at least 60 days out of the year.
A water vending machine provides piped water for human consumption, and it would probably
serve an average of 25 people a day for at least 60 days out of the year. The coverage section of
the NIPDWR, Section 14.1.3,-includes all public water systems unless all three of these
conditions are met:
(a) Consists only of distribution and storage facilities (and does not have any collection and
treatment facilities);
1 The regulations under the SDWA explain the term "regular" by stating that a public
water system must have at least fifteen service connections or regularly serve an average of
twenty-five individuals daily at least sixty days out of the year. 40 CFR 35.603(c), 41 F.R. 2913,
Jan. 20,1976.
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WSG3
(b) Obtains all of its water from, but is not owned or operated by, a public water system to
which such regulations apply;
(c) Does not sell water to any person.
The whole point of water vending machines is to sell water so that condition (c) is not
met. Most machines treat the water hi some way so condition (a) is not met.
If any one of (a) (b) or (c) is not met, the public water system is covered by the
regulations.
Conclusion
Water vending machines which either treat water in some way or sell water are covered
by the NIPDWR as a non-community, public water supply.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG4
Date Signed: October 29,1976
MEMORANDUM
SUBJECT: Guidelines for Preparation and Review of
State Emergency Plans
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division
Office of Water Supply (WH-550)
TO: Regional Water Supply Representatives
Your comments on the initial draft of the above subject Guidance, received in response to
our request dated May 5,1976, have been reviewed and evaluated. As a result of your comments
and suggestions, a number of changes have been made in the text.
Attached herewith is the final version of the Guidance for your information and use.
Attachment
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WSG4
GUIDELINES FOR PREPARATION AND
REVIEW OF THE STATE EMERGENCY PLAN
Section 1413 of the Safe Drinking Water Act provides for a State to have primary
enforcement responsibility for public water systems if EPA determines that the State has satisfied
5 basic conditions specified in Section 1413. One of the conditions (Sec. 1413(a)(5)) requires
that a State, "Has adopted and can implement an adequate plan for the provision of drinking
water under emergency circumstances." A State is not required to have an individual plan for
each public water system. All that is required is a State-wide plan for responding to
emergencies. A State must submit to EPA, pursuant to 40 CFR 142.1 l(a)(5), a brief description
of its plan. The adequacy of the plan should be determined on the basis of this submission.
This guidance is limited to those key elements of a State-wide plan that will permit a
timely, effective response to problems. Within this general framework, it is suggested that the
States be permitted maximum discretion in adopting and implementing a plan. Any requirements
imposed on the States should be simple and relatively limited so that they can be readily and
usefully attained. To be realistic, the State plan should have clear but limited objectives and
should be periodically updated and tested.
The details of the plan outlined in the following should be left to the judgement of the
State. These limited guidelines should not, however, preclude a State from developing a more
extensive plan as time and resources permit. The vulnerability of water supply systems to a
particular type of disaster will vary from State to State. For instance, some States are located in
earthquake areas, others are located in areas subject to hurricanes. The details of any State plan
will depend on local conditions and circumstances. The details of a State-wide plan should be
developed within the framework of the following suggested elements.
State Response
1. Communication - The plan should promote human awareness and a readiness to respond to
disaster circumstances. It is essential to appoint a state disaster coordinator and to designate key
water supply personnel for call under disaster circumstances. As for local plans, they will require
telephone lists, periodic updating, and testing. Where possible, the plan should provide for the
use of radio communications-when telephones become inoperative.
2. Inventory - The State should maintain current inventories of all public water systems and
emergency equipment available and should encourage water utilities to acquire and maintain
standardized parts and equipment where economically feasible.
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WSG4
a. The inventory of public water systems should be continually
updated and periodically reviewed and revised. (40 CFR 142.10
b. The State should maintain, to the extent possible, a rough
inventory of all appropriate trucking and other equipment that
might be made available to solve emergency water supply
problems. Possible sources for this equipment would include the
military, private firms, public works agencies, and civil defense
agencies (a variety of water supply and other equipment is
available for emergency use from depots maintained by the
Defense Civil Preparedness Agency (DCPA) and others).
(1) Available treatment chemicals and emergency
equipment including standby power sources and
water pumps.
(2) Location of the equipment.
(3) The mechanism(s) required to obtain the needed
equipment.
3. Local plans - The plan should stimulate local activity. The State should encourage local
utilities to prepare their own disaster plans. It is important that specific planning for alternate
sources be undertaken for the State's larger water utilities. As a practical matter, the State should
have such plans on file for five to ten of the larger utilities. Systems serving the largest
population gŁ risk should be selected. For each area, alternate water systems should be assessed
and selected for availability in the event the basic water system is incapacitated. Factors to be
considered in the selection process would include accessibility for tank trucks, the capacity of
filling facilities, and the proximity of the alternate system. In addition, the larger utilities should
be encouraged to develop their own detailed emergency plans as soon as'possible. Ultimately, all
community water systems will be expected to adopt a local plan. For such detailed planning at
the local level, the AWWA Manual No. Ml 9, Emergency Planning for Water Utility
Management, 1973. should prove useful.
4. Coordination - A number of Federal and State Agencies are involved in emergency planning.
Many provide assistance unique to their Agency. Many provide assistance only hi certain
situations and under certain conditions. The Federal Disaster Assistance Administration (FDAA)
maintains contact with each Governor's Office and provides financial assessment and assistance
when the President designates a disaster area. The Defense Civil Preparedness Agency provides
emergency equipment. The Corps of Engineers, U.S. Army, provides certain
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WSG4
types of assistance, primarily during floods. However, the Corps recently proposed regulations
(33 CFR Part 214) to provide assistance to communities confronted with a source of
contaminated drinking water that presents a threat to the health and welfare of the community.
These regulations stem from legislation that was a consequence of the recent Duluth asbestos
problem. States also have Civil Defense Agencies providing assistance during emergencies.
The various types of assistance provided by Federal and State Agencies can be a useful element
in a State's plan to provide drinking water during emergencies. To effectively utilize this
assistance, the State plan should provide for coordination with all the Agencies. The plan should
specify the assistance available from each Agency. The State should also determine the
conditions and circumstances under which he assistance will be provided and the mechanism that
will be required to elicit the response.
5. Public Information - The State plan should include a public information program designed to
inform the public on what they can expect and what they can do in the event of an emergency.
Public information pamphlets and public service announcements via radio and TV should be
utilized to promote public awareness.
Local Response
Since one of the main State functions is to stimulate preparation of local emergency plans, it
seems appropriate to give additional guidance on this subject.
The principal function of a utility plan should be to create a state of human awareness for
response and to take steps to ensure water for human survival, if and when a disaster strikes. The
AWWA manual No. M 19, should be useful to local utilities in developing their individual plans.
Some of the key elements of an adequate local plan are similar to those recommended for the
State-wide plan.
1. Communication - Appoint a disaster coordinator and designate a limited number of key
operational personnel for call under disaster circumstances. This will require home and office
telephone lists. Although it is recognized that such lists are usually out-of-date, they can be
useful. Awareness of emergency responsibility can be enhanced by trial activations. Authorities
to authorize expenditures during emergencies should be clearly set forth.
2. Alternate Sources - Assess and select alternate water systems that could be made available if
the basic water system is incapacitated. Factors to be considered in the selection process would
include accessibility for tank trucks, the capacity of filling facilities, and the location of the
alternate facility. The assessment should include municipal, private, and other sources for trucks
that could carry drinking water
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WSG4
under emergency circumstances. Informal relationships with appropriate sources should be
established. Breweries, milk plants, city public works departments, and the U.S. military and
National Guard have been sources of water trucks in past emergencies. Formal or informal
mutual-aid arrangements should be established with nearby utilities, particularly those selected as
alternate systems. Necessary emergency procedures, such as a tank truck disinfection and
protection and disinfection of trucked water, should be hi writing and readily available.
3. Inventory - The inventory of emergency equipment maintained by the State should provide
the basis for each utility to devetop a more detailed inventory of equipment that can be made
available to that particular utility.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG5
Date Signed: November 29,1976
Revised: November 1998
Revised by: Ed Click & Jennifer Melch
MEMORANDUM
SUBJECT: Approval of State Programs for Primary
Enforcement Authority Under Subpart B
of the Safe Drinking Water Act
FROM: John R. Quarles, Jr. (signed by John Quarles)
Deputy Administrator (A-100)
TO: Regional Administrators
As a follow-up to the recent Regional Administrators' meeting, attached is a document
prepared by the Office of Water Supply for your guidance in reviewing applications for primary
enforcement authority under the Safe Drinking Water Act, PL 93-523.
It is the firm policy of the Act and the Agency to encourage the States to exercise primary
enforcement responsibility over the public water system program. Existing State statutory
authority should be examined carefully to determine whether it is adequate to support the
establishment of regulations which together with the statutory authority would allow the State to
meet the requirements of 40 CFR §142.10. It is important to avoid the need for statutory
changes, where possible, to avoid the delay and uncertainty in the legislative process. EPA is not
attempting to burden the States with an "ideal" statutory or regulatory program. Rather, the
objective of the State implementation program is to assure that all States have a drinking water
program which is consistent with the requirements of Section 1413 of the Act and contains the
minimum requirements necessary to protect and enhance the State's drinking water.
At the Regional Administrators' meeting a number of specific questions were raised with
respect to the State implementation program. Below, I have attempted to restate and answer
these questions.
1. Can EPA conditionally or partially approve a State program?
No. The legislation and Title 40 CFR §142.10 (Jan. 20,1976) of the
implementation regulations set out the minimum requirements for
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WSG5
primary enforcement responsibility and do not provide for approval of partial or
conditional primacy.
2. Can EPA, under the existing regulations, approve a State program if all elements of a
particular segment are not fully in place?
Yes, in some instances. Under 142.10(b)(l) and (2), a State must only begin to
inventory and survey public water systems. The entire inventory and sanitary
survey does not have to be completed for primacy to be granted. Under
142.10(b)(3), lab certification programs may be informally approved prior to the
implementation of a national quality assurance program. Since EPA does not
anticipate the implementation of such a program for at least a year, there should
be a great deal of flexibility with respect to lab certification and primacy. Under
142.10(c), recordkeeping and reporting requirements (i.e., computer systems)
need not be on line as of the date of primacy if it is apparent that the State systems
will be "on line" so as to enable the State to fulfill the requirements of 142.14 and
142.15.
3. Can EPA contract out our responsibilities if a State does not assume primacy? Can EPA
contract with the State?
Yes, to a limited extent. For example, EPA could contract with a private lab to
handle laboratory certification or with the Indian Health Service to inspect
reservations. However, I do not think that we could delegate our enforcement
responsibilities. Grants may only be made to individuals or non-profit institutions
(Section 1450(d)(2)).
Section 1442(b)(3) provides the Administrator with authority to make grants to,
and enter into contracts with, any public agency for three broad purposes. We
could also make grants to States for special demonstration projects under Section
1444. This authority is limited by two pragmatic constraints, however. First, our
grant and contract funds are finite. Second, to the extent that we implement broad
scale financial arrangements with non-primacy States, we would undercut the
positive incentive (continuing grants) for primacy.
•
4. Must the General Counsel sign off on all approvals by the Regional Administrators of
applications for primacy?
Yes. The Administrator delegated the authority to approve applications for
primacy to the Regional Administrators subject to the concurrence of the Office of
General Counsel. Delegation 9-4, July 21,1976.
Absent this condition, I believe it would be difficult to obtain a reasonably
consistent approach to primacy. As indicated hi Bill Prick's memorandum of
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WSG5
October 26, this review should be completed within 15 days, and the scope of
review will be designed to provide a reasonably consistent approach to State
implementation, given the variations inherent between States. If any problems
develop, Bill Frick personally will review the situation with the appropriate
Regional Administrator or Regional Counsel.
5. Are EPA's lab certification requirements mandatory?
Certification issues that are mandatory are:
1. Must use a promulgated method, soon to be a moot point with the adoption of PBMS.
2. The lab must successfully analyze a PE sample annually for all contaminants for
which it wants certification provided by EPA, the State, or a third party that is acceptable
to the State or EPA.
3. The lab must pass the PE sample by the method they are using to report compliance
data.
4. The lab must pass an on-site evaluation at least every three years.
Should you have any questions on the material in this memorandum, please call Victor J.
Kimm, (202) 426-8847.
Attachment
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WSG5
INITIAL
APPROVAL OF STATE PROGRAMS
FOR
PRIMARY ENFORCEMENT AUTHORITY
UNDER SUBPART B OF THE SAFE
DRINKING WATER ACT
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WSG5
Under Subpart B of the Safe Drinking Water Act
This paper will describe the minimum requirements which must be met by a State before
it can be granted primacy. It must be emphasized that there is no such thing as "shared primacy";
a State either has primacy or it does not. To obtain primacy a State must have at least the
minimum program described in Section 142.10, and submit the information required in Section
142.11 for an initial determination of primary enforcement responsibility. Each specific item in
Section 142.10 will be discussed.
Section 142.10(ay State primary drinking water regulations no less stringent than Federal
regulations.
The Interim Primary Drinking Water Regulations became effective June 24,1977.
Primacy determinations must evaluate State Primary Drinking Water Regulations to determine
that they have standards for all the constituents, the Maximum Contaminant Levels (MCLs) are
as stringent, samples must be obtained as frequently, and the analytical methods must be equal to
those in the Federal regulations or as described in the OW PBMS Rule.
After June 24,1977 States which have primacy and States which apply for primacy must
adopt regulations which are no less stringent than the interim or any revised National Primary
Drinking Water Regulations.
Section 142.10(b)(l). Adequate State procedures to maintain an inventory of public water
systems.
The State applying for primacy must have either a manual or automatic data processing
system in place to comply with the reporting requirements of Section 142.15(a). The system
must be capable of maintaining records on all public water systems for which the State has
primacy. The system must maintain at least those data elements which must be transmitted to
EPA. Finally, the system must be able to extract the necessary data for the annual report to EPA.
Section 142.10(b)(2V The State must have a systematic program for sanitary surveys.
The State applying for primacy must have a procedure to allocate resources for sanitary
surveys. All public water supplies must be considered for sanitary surveys and priority must be
given to those which are not in compliance with the State's primary drinking water regulations.
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Section 142.10fb)(3V The State must have a laboratory certification or approval program.
EPA has a national certification program in operation, and the State must use this
program unless it has an equal or more stringent certification program. If the State conducts all
analyses in its own laboratory, which is certified by EPA, then a State approval or certification
program is not necessary.
Section 142.10(bY4). The State must have access to laboratory facilities approved (on an interim
basis) or certified by EPA.
The State applying for primacy must have a laboratory(ies) available to it which is
capable of analyzing drinking water for all of the contaminants of the State primary drinking
water regulations. This laboratory can be part of the agency designated by the governor to have
primary enforcement authority, a laboratory operated by another State agency, any laboratory
under contract to or having an agreement with the State or a combination of these. These
laboratories must be approved or certified by EPA. Under exceptional circumstances, the
Regional Administrator may offer to conduct temporarily certain analyses in EPA laboratories to
assist a State. A list of analyses required must be submitted, showing the laboratory which will
do each and its approval status.
Section 142.10(bX5). The State must have an activity to assure that new or substantially
modified Public Water Supplies (PWSsI are capable of complying with the primary regulations.
There must be an enforceable regulation requiring that plans and specifications be
reviewed by an agency or person responsible to the State to ascertain that the proposed facilities
will be able to produce water meeting the requirements of the primary regulations. The State
must specify who has the authority to approve the plans and specifications. Assurance that new
and substantially modified PWSs will be able to comply with the primary standards is essential
because these facilities are not eligible for an exemption.
Section 142.10(b)(6Vi). The State must be able to apply State primary standards to all PWSs that
are within the State's jurisdiction, in accordance with EPA regulations.
The State's definition of Public Water System, Community Water System, and
Non-Community Water System must be the same or more inclusive than the EPA definition
(Section 142.3).
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Section 142.10(bY6Yiiy The State must have authority to sue in courts of competent Jurisdiction
to enjoin any violation of State Primary Drinking Water Regulations.
The State must include a copy of a State statute or clear common law precedent generally
authorizing the appropriate agency to bring an action in courts of competent jurisdiction to enjoin
violations of State primary .drinking water regulations. States should be encouraged (not
required) to adopt a statute which expressly authorizes an appropriate party to seek an injunction
of any threatened or actual violation of a State primary drinking water regulation. The State
should prepare a summary of its existing legislation and regulations, together with any State
Supreme Court decisions and/or opinions of the State Attorney General or Agency Counsel
interpreting the law, for evaluation for adequacy by the Regional Office.
Section 142.10(b)(6)(iii). Right of entry and inspection of public water systems, including the
right to take water samples regardless of whether the State has evidence that the system is in
violation.
This authority must be clearly spelled out in a State Safe Drinking Water Act or in State
regulations. If the authority is not clearly spelled out, the State should prepare a summary of its
existing legislation and regulations, together with any State Supreme Court decisions and/or
opinions of the State Attorney General or Agency Counsel interpreting the law, for evaluation for
adequacy by the Regional Office. If a warrant is required, the State should demonstrate that it
has minimal burden of proof with respect to probable cause in order to obtain a warrant.
Section 142.10(b)(6Xiv). Authority to require suppliers of water to keep appropriate records and
make appropriate reports.
This authority must be clearly spelled out in a State Safe Drinking Water Act or in State
regulations. If the authority is not clearly spelled out, the State should prepare a summary of its
existing legislation and regulations, together with any State Supreme Court decisions and/or
opinions of the State Attorney General or Agency Counsel interpreting the law, for evaluation for
adequacy by the Regional Office.
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Section 142.10(bV6Xv)- Authority to require public water systems to give public notice of
violations of State primary drinking water regulations to the extent set forth in Section 142.16.
The State must have this authority clearly spelled out in a State Safe Drinking Water Act
or in enforceable regulations. At a minimum, the authority must correspond with the detailed
requirements set out in Section 142.16, and include authority to require additional notification in
appropriate circumstances.
It should be pointed out that the Federal notice requirements apply to all public water
systems, including those in States which have primary enforcement responsibility. Therefore,
even though a State does not have to have the same public notification requirements in order to
qualify for primary enforcement responsibility, it is highly desirable that State public notification
requirements be substantially the same as the Federal requirements (141.32) to avoid a split in
enforcement responsibilities.
Section 142.10(b)(6Ąviy The State must have authority to assess either civil or criminal
penalties for violation of its Primary Drinking Water Regulations and Public Notification
Requirements.
The authority to assess penalties must be clearly spelled out in a State Safe Drinking
Water Act or in State regulations applicable to the drinking Water program. If the penalty
maximum limitations are less than $25,000 civil penalty per violation, they will be evaluated in
the context of the overall enforcement capability. The penalties should allow for either daily or
multiple assessments if the violation continues, but this requirement is not mandatory if the
State's enforcement program is otherwise adequate. The States should be urged to adopt the
same maximum level of civil penalties as have been adopted in the Act. However, States should
also be encouraged (not required) to adopt strict liability civil penalty provisions (with lower
penalties). Any type of civil penalty should be encouraged over criminal penalties. The State
should be aware of the following paragraph from the preamble to the implementation regulations,
Federal Register. 41,2917, January 20,1976:
If the Administrator approves a State program with a maximum
level of penalties below that contained in the Safe Drinking Water
Act, but subsequently determines that the lower level of maximum
penalties has had a significant adverse effect on the adequacy of
' the State's procedures for enforcement of its primary drinking
water regulations, the Administrator will inform the State that it
must immediately initiate action to raise the maximum level of
penalties in order to retain primary enforcement responsibility.
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The State should prepare a summary of its existing authority, including opinions of the
State Attorney General and/or Agency Counsel, together with its enforcement experience,
showing that its authority is adequate to secure compliance for evaluation for adequacy by the
Regional Office.
Section 142.10(c). The State must establish and maintain record-keeping and reporting of its
activities in compliance with Sections 142.14 and 142.15.
The State must submit details of the system for compiling and maintaining the records
required by Sections 142.14 and 142.15. The plan must show that the records will be kept
current and in a form admissible as evidence in State enforcement proceedings. The plan must
detail how the records will be maintained and made available for public inspection. The state
may require that the records be made available for public inspection by the suppliers of water in
accordance with Section 142.14(f).
Section 142.10(d). Variance and exemption requirements.
Although the State does not have to have variance and exemption regulations, the
Regional Offices should strongly urge all States to provide for variances and exemptions in as
much as the flexibility afforded by these provisions is very desirable. Any State variance and
exemption regulations must provide that variances and exemptions will be granted under
conditions and in a manner which are no less stringent than those contained in Sections 1415 and
1416 of the Public Health Service Act. The State application for primacy must provide evidence
that it has authority to grant variances or exemptions and sufficient details to permit a
determination that the procedure is consistent with the Act. The guidance document on variances
and exemptions will be helpful in making this determination.
Section 142.10fey The State must have provision for safe drinking water under emergency
conditions.
The State application for primacy must be accompanied by a brief description of its
emergency plan. The plan may be general or detailed but it must provide assurance that the State
is prepared to cope with emergency conditions such as earthquakes, floods, hurricanes, and other
natural disasters.
Section 142.10(f). The State must have adopted authority for administrative penalties.
The State must have the authority to assess administrative penalties for all violations of
their approved primacy program, unless prohibited by the State constitution. 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.
However, States are not required to assess this maximum per day per violation penalty for every
violation, so long as they retain the authority to.
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WSG5
For public water systems serving a population of 10,000 or fewer individuals, States must
have penalties that are adequate to ensure compliance with State regulations. In determining a
level or levels of administrative penalties which will ensure compliance, a State may take into
consideration such factors as the special challenges that some smaller systems face, their
financial capability to pay the penalty, any economic advantage gained through noncompliance,
the gravity of the violation, and whether the violation was a single instance or a repeat violation.
10
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG6
Date Signed: December 3,1976
MEMORANDUM
SUBJECT: Water Hauler
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division, Office of Water Supply (WH-550)
TO: Water Division Directors
Region V requested an official interpretation of the applicability of the Safe Drinking
Water Act to water haulers. A water hauler purchases water from a community water supply and
delivers it in batch lots to fanners and other residents living hi remote areas who do not
otherwise have access to water for household use.
The attached opinion from the Office of General Counsel finds water haulers are public
water supplies.
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG6A
Date Signed: November 26,1976
Revised: November 1998
Revised by: Wendy Warren
MEMORANDUM
TO: Victor J. Kimm .
Deputy Assistant Administrator
for Water Supply (WH-550)
FROM: Thomas A. Largen (signed by T. A. L.)
Attorney-Advisor
Water Quality Division (A-l31)
THRU: Roger D. Lee, Chief
. . Drinking Water Regulations Implementation Branch
Office of Water Supply (WH-550)
SUBJECT: Applicability of the Safe Drinking Water Act to Water Haulers
Region V has requested an interpretation as to whether water haulers are public water
systems under the Safe Drinking Water Act.
A "public water system" is defined by Section 1401(4) as:
...a system for the provision to the public of water for human consumption,
through pipes or other constructed conveyances if such system has at least fifteen
service connections or regularly1 serves an average of at least twenty-five
individuals daily at least 60 days out of the year.
Although the term "piped water" is not defined by the Act or the NIPDWR, hauled water
is piped into the carrier vehicle, withdrawn by similar mechanism into the user's cistern, and in
most cases, piped again from cistern to faucet. Therefore, a hauler presumably provides piped
water.
'The regulations under the SDWA explain the term "regular" by stating that a public
water system must have at least fifteen service connections or regularly serve an average of
twenty-five individuals daily at least sixty days out of the year. 40 CFR 35.603(c), 41 F.R. 2913,
Jan. 20,1976.
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WSG6A
This interpretation is reinforced by the legislative history of the SDWA which clearly
intends a broad meaning for "public water system" to insure comprehensive protection of public
health. (See House Report No. 93-1185, at 1).
The broad purpose of the SDWA "is to assure that water supply systems serving the
public meet minimum national standards for protection of public health". (House Report No
93-1185, at 1). Whether water for public use is withdrawn from a transport vehicle, a river, or a
well is irrelevant under the comprehensive regulatory scheme.
Thus, a water hauler, whether independent or owned or operated by a public water
system, is itself a public water system under the NIPDWR if it meets minimum standards for
number of outlets or customers served.
Furthermore, if the water hauler serves at least fifteen service connections used by •
year-round residents or regularly serves at least twenty-five year-round residents, then the hauler
is a "community water system" as defined by Section 141.2(a)(i). Otherwise, it is a
non-community system which would be subject to less stringent monitoring requirements than a
community system. ..
The coverage section of NIPDWR, Section 141.3, includes any public water system,
unless it satisfies §11 of the following conditions:
(a) Consists only of distribution and storage facilities (and does not have any
collection and treatment facilities):
(b) Obtains all of its water from, but is not owned or operated by, a public water
system to which such regulations apply;
(c) Does not sell well water to any person; and
(d) Is not a carrier which conveys passengers in interstate commerce.
If independently owned or operated, a water hauler's business presumably is to sell water.
Therefore, condition (c) is not met. To "sell" water is given broad meaning under the Act. For
example, a sale transaction cannot be disguised as a service charge to circumvent condition (c).
Note the House Committee's interpretation:
Thus, for example, a municipal system which imposes water and sewage taxes or
charges would not be exempt, because it sells water within the meaning of the
section. Any distributor of water for human consumption, whether public or
private, would be subject to the primary regulations unless he can show that he
receives his water supplies from a system which is subject to the regulations and
he does not charge consumers for the water that he provides. The purpose of this
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WSG6A
provision is to exempt from Federal regulation those facilities such as hotelsr
which merely by virtue of having a storage tank and acting as a conduit from
public water system to consumer wouid otherwise be subject to Federal regulation
as a public water system.
By this provision the Committee intends that primary regulations would apply to housing
developments, motels, restaurants, trailer parkers, and other businesses serving the public, if the
business hi question maintains its own well or water supply. The Committee intends to exempt
business which merely store and distribute water provided by others, unless that business sells
water as a separate item or bills separately for water it provides. (Emphasis added). House
Report No. 93-1185, at 17.
In the case of a water hauler which is owned or operated by a public water system to
which the NIPDWR apply, and from which the hauler obtains all its water, condition (b) of the
coverage in Section 141.3 is not satisfied. Neither, presumably, is the non-sale condition of
subparagraph (c) satisfied. The broad meaning of to "sell" water under SDWA does not intend to
permit circumvention of condition (c) by resort to accounting devices, e g., arranging to have
users make direct payments to the source supplier and be billed separately by the hauler for a
"service charge". (See above quoted passage from House Report No 93-1185, at 17.)
Note, however, the effect of Section 141.29 of the NIPDWR, which provides for
modifications in monitoring requirements for "consecutive public water systems" to the extent
that the interconnection of the systems justifies treating them as a single system for purposes of
monitoring. Thus, if a water hauler qualifying as a "public water system" obtains all of its water
from another "public water system," then the state may treat the two as a single system for
purposes of monitoring, where the state finds the interconnection of the two systems is justified
for this limited purpose, and the modified monitoring is conducted pursuant to a schedule
specified by the state and concurred in by the Administrator of EPA. See Section 141.29 of the
NIPDWR.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG7
Date Signed: December 13,1976
MEMORANDUM
SUBJECT: Guidance on Allowable Costs for State Public
Water System Supervision Program Grants
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division
Office of Water Supply (WH-550)
TO: Regional Water Supply Representatives
This guidance has been prepared in partial fulfillment of Headquarters Commitment No.
IS listed in my memorandum of September 29,1976. It is intended to familiarize you with those
costs that are incurred by the States for public water system supervision programs that can be
considered allowable for Federal grant participation within the Statutory and Administrative
limitations.
*Note: CFR references may need to be updated due to upcoming revisions with the CFR.
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WSG7
Guidance on Allowable Costs for State
Public Water System Supervision Program Grants
1. Purpose
A number of States are incurring expenditures not only on the activities that are necessary
for the implementation of the provisions of the Safe Drinking Water Act but also on water supply
related activities that are mandated by their own State laws. Obviously, the Federal government
cannot pay for activities that are required by the State laws in excess of federal requirements.
For Federal grant participation, only those State costs are allowable which are related to the
program elements authorized by Section 1413 of P.L. 93-523 and 40 CFR Section 35.626-1.
This Guidance is expected to provide general information about the allowable costs as they relate
to the State Public Water System Supervision Program.
2. Background
Section 1443 of P.L. 93-523 authorizes the Administrator to make grants to qualified
States to carry out public water system supervision programs. Such grants shall cover not more
than 75 per cent of the grant recipients' costs (as determined under regulations of the
Administrator) that are necessary and reasonable to carry out program responsibilities. These
costs are termed as allowable costs.
3. Allowable Costs
EPA Regulation 40 CFR Section 30.705 describes the following general criteria for
determining the allowability for project (public water system supervision program in the present
case) costs:
(a) The cost must be reasonable and within the scope of the project;
(b) The cost is allocable to the extent of benefit properly attributable to the project;
(c) Such costs must be accorded consistent treatment through application of generally
accepted accounting principles;
(d) The cost must not be allocable to or included as a cost of any other federally
assisted program in any accounting period (either current or prior); and
(e) The cost must be in conformity with any limitations, conditions, or exclusions set
forth in the grant agreement or this subchapter (B of 40 CFR), including
appropriate Federal cost principles of this subpart (F of 40 CFR).
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WSG7
Expenditures for public water system supervision can be reported either by object
class categories or by program elements.
3.1 Determination of Allowable Costs When Expenditures are Reported by Object Class
Categories
When the expenses for the public water system supervision program are reported by
object class categories such as expenditures for personnel administration, employee fringe
benefits, travel, budgeting, payroll preparation, materials and supplies, etc., the allowability or
non-allowability of reported expenditures can be determined by applying the principles outlined
in FMC 74-4 of My 18,1974 "Cost Principles Applicable to Grants and Contracts with State
and Local Government." This document contains excellent background information and
guidance for the proper treatment of cost in 27 object class categories. Additional guidance may
be found in the Grant Administration Manual under the following parts:
a. Part 6 - Price/Cost analysis and Cost Review
b. Part 7 - Determination of Cost (this part also includes a copy of FMC 74-4)
c. Part 8 - Cost Sharing
3.2 Determination of Allowable Cost When Expenditures are Reported by Program Elements
When the expenses for the public water system supervision program are reported by
program elements, they must be for program elements authorized by Section 1413 of the Act and
40 CFR Section 35:626-1. Expenditures incurred in carrying out the program elements listed in
40 CFR Section 35.626-1 (or any other appropriate program elements) are allowable costs
provided that the expenditures:
(a) Are incurred specifically for the public water system supervision program;
(b) Benefit both the public water system supervision program and other related work
and can be distributed to them in reasonable proportion to the benefits received or;
(c) , Are necessary to the overall operation of the grantee, although a direct
relationship to any particular cost objective cannot be shown.
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WSG7
3.2.1 Unallowable Program Element Costs
Certain costs incurred on the program elements listed in 40 CFR Section 35*.626-l might
appear to be allowable costs but they are not allowable because they are contrary to EPA policy.
A list of such unallowable costs will evolve as more experience with the implementation of grant
regulations is accumulated. At this time only the following two types of costs deserve mention:
(a) The costs to collect routine monitoring samples should be the responsibility of
public water systems, Therefore, State expenditures for collection of routine
monitoring samples are unallowable costs for Federal grant participation. With
respect to the acceptability of State expenditures to analyze routine monitoring
samples as allowable costs, the preamble to the final regulations dated January 20,
1976 for State Public Water System Supervision Programs pointed out "that such
costs should be transferred to the public water systems as quickly as feasible."
However, hi response to pertinent comments, no limitation on the use of grant
funds to analyze routine monitoring samples was included in the grant
regulations. Instead, a more practical and conciliatory approach was adopted hi
the sense that "if experience later indicates that a restriction is desirable, States
which provide routine sample analysis for public water systems will be given
ample time to phase out their programs or find additional funding."
(b) In instances where the State provides personnel to design, construct and operate
State-owned public water systems in addition to the Plan Review activity, the
. expenditures incurred on such additional activities are unallowable costs and
should be borne entirely by the State.
3.2.2 Maintenance of Expenditure Records
Eventually, some of the grants awarded to the States will be audited. Therefore, it is
imperative that the expenditures are reported properly to avert subsequent audit problems. In this
context it is suggested that "Audit Guide for EPA Grants (other than construction Grants)"
should also be used for additional information. This document provides, in Chapter 3, examples
of unallowable, unreasonable, improperly allocated, improperly documented, and improperly
approved costs.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG7A
Date Signed: March 11,1977
MEMORANDUM
SUBJECT: Guidance on Allowable Costs for State Public
Water System Supervision Program Grants
FROM: Alan Levin, Director, State Programs Division (signed by Alan Levin) Office of
Water Supply (WH-550)
TO: Regional Water Supply Representatives
Section 1443 (Grants for State Programs) of the Safe Drinking Water Act authorizes EPA
to make grants to States to carry out a Public Water System Supervision Program. There is no
guidance hi this section regarding what the grant funds can be used for. However, Section 1445
(Records and Inspections) says that "Every person who is a supplier of water—shall establish and
maintain such records, make such reports, conduct such monitoring...as the Administrator may
reasonably require...." In the House Report on Section 1445 this sentence appears:
"Consequently the committee expects that the Administrator would require all public water
systems to notify him frequently of the quality of the water being provided for human
consumption...."
Based on Section 1445 of the Act, the Interim Primary Drinking Water Regulations and
the Implementation Regulations were written using the assumption that the suppliers of water
would provide the results of the required analyses to the State or EPA. In preparing our
Proposed Program Grant Regulations, EPA recognized that many States provided for the analysis
of routine samples on a reduced cost or no cost basis. In the preamble to the Proposed Grant
Regulations, we asked for comments on the manner in which all routine monitoring costs may be
expeditiously transferred from the States to the public water systems. We received six comments
supporting the proposal not to restrict the use of grant funds for sample analyses. There were -
three comments received from State water supply agencies which indicated that it wouldn't make
much difference whether EPA required the utilities to pay for monitoring costs or not. There
were another six comments favoring the transfer of monitoring costs to the public water systems.
The conclusion reached in promulgating the Grant Regulations was: "It has been decided to
retain the program element for laboratory operations without restrictions on routine sampling
analysis." (F.R. January 20,1976, Page 2915).
*Note: CFR references may need to be updated due to upcoming revisions with the CFR.
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WSG7A
The preamble to the promulgated regulations also discussed routine sample analysis and
stated that: "If experience later indicated that a restriction is desirable, States which provide
routine sample analysis for public water systems will be given ample time to phase out their
programs or find additional funding."
EPA recognizes that a good case can be made for States providing routine sample
analysis free or at reduced costs to public water systems. However, the case for State collection
of routine samples is very weak. Water supply personnel and others can be trained to collect
samples and ship them to the appropriate laboratory. This is much more cost effective, in that a
person already at the site can do the work. To have State employees obtain the same sample
requires a great deal of travel costs and man-hours involved in travel for the very short task of
obtaining a water sample.
The allocation of costs to a particular grant, or grant purpose is not always easy.
Nevertheless all grants have requirements and guidelines defining what is an allowable cost to be
charged to that grant. Once the guidelines are set, they must be interpreted in a reasonable
manner to suit each individual case. This memo will present three examples to define allowable
costs in general and sample collection hi particular.
1) A State is required to have the capability to conduct each analysis required by the
National Interim Primary Drinking Water Regulations (NIPDWR). If the most cost
effective way to obtain that capability is to buy a piece of equipment, then it should be
purchased. If the equipment will be used almost exclusively for support of the water
supply program, then the equipment should be charged to the water supply grant. On the
other hand, if the equipment is only to be utilized half the time for water supply work and
half the time for another program, then it would seem reasonable to allot only one-half
the cost of the equipment to the water supply grant. Further, if the State only needs to run
an occasional water supply radionuclide sample and another State agency has the facility
to do the required analyses, we feel it would be reasonable for the water supply grant to
pay for no more than a small percentage of the cost to operate the radionuclide facility.
2) In order to have a certified laboratory, the State should have control over the sampling
procedures. State laboratories should perform such activities as:
Provide the proper sampling bottles and shipping containers;
Provide easy-to-understand sampling instructions with each bottle;
Provide forms for the sample collector to fill out when the sample is collected;
and
Provide input on proper sample collection procedures at training courses.
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WSG7A
We feel that the above listed types of activities or similar types of activities are adequate
to assure control over sampling procedures. We do not feel that it is necessary to have paid
sample collectors to insure the validity of all samples. An exception would be the collection of
special samples for a pending enforcement action. In such cases, the costs of collection,
shipment, and analysis would be allowable.
3) State water supply surveillance personnel usually travel throughout the State for many
reasons:
To conduct sanitary surveys;
To provide technical assistance;
To conduct enforcement activities; and
To make investigations for variance or exemption proceedings.
All of these activities may require that samples be collected pursuant to the primary
reason the person is at the water supply. It might also be that a routine chemical or
bacteriological sample is due at that time so the State employee may as well collect the samples
(either a special or routine sample) while there. In all of these examples, the sample collection is
incidental to the reason for the visit, and a reasonable audit of the State's operation would not
disallow the cost of these visits simply because a routine sample was collected during the visit.
To summarize, the cost of collection of routine monitoring samples is not an allowable
cost for Federal grant participation. However, it is not reasonable to expect that every minute of
water supply surveillance personnel's time be accounted for. Therefore, collection of routine
samples as an incidental part of other activities will not be disallowed.
I hope that this helps clarify Water Supply Guidance Number 32. Should you have
additional questions, please call Peter Bengtson (FTS-426-3983).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG8
Date Signed: December 20,1976
MEMORANDUM
SUBJECT: Application of the Safe Drinking Water Act to Persons
Adding Corrosion Reducing Chemicals to Drinking Water
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division
Office of Water Supply (WH-550)
TO: Water Division Directors
Region IV requested an official interpretation of the applicability of the Safe Drinking
Water Act to persons using individual on-site corrosion control treatment of public water
supplies.
The attached opinion from the Office of General Counsel finds that a person (defined by
the SDWA to mean an individual, corporation, company, association, partnership, state or
municipality) which serves at least twenty-five individuals, and which adds a corrosion-reducing
chemical, or any chemical, to its drinking water supply, is a public water system which is not
exempt from regulations under the SDWA.
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG8A
Date Signed: December 8,1976
Revised: November 1998
Revised by: Wendy Warren
MEMORANDUM
TO: Joseph Hugo
Environmental Engineer
Office of Water Supply (WH-550)
FROM: Thomas A. Larsen (signed by T.A.L.)
Attorney-Advisor
Office of General Counsel (A-131)
Matt O'Meara
Legal Clerk
Office of Water Supply (WH-550)
SUBJECT: Application of the Safe Drinking Water Act to Persons
Adding Corrosion-Reducing Chemicals to Drinking Water
Region IV has requested an interpretation as to whether persons' that add compounds
such as sodium silicate to drinking water supplies to reduce corrosion should be designated as
"suppliers of water" for purposes of regulation under the Safe Drinking Water Act (SDWA).
Under the Act, a "supplier of water" is "any person who owns or operates a public water
system."2
A "public water system" is defined as:
...a system for the provision to the public of water for human consumption through
pipes or other constructed conveyances, if such system has at least fifteen service
connections or regularly3 serves at least twenty-five individuals daily at least 60 days out
1 Under the SDWA: "The term 'person' means an individual, corporation, company,
association, partnership, states or municipality." Section 1401(12).
2 SDWA, Section 1401(5)
3 The regulations under the SDWA explain the term "regular" by stating that a public
water system must have at least fifteen service connections or regularly serve an average
of twenty-five individuals daily at least sixty days out of the year. 40 CFR 35.603(c), 41
F.R. 2913,Jan. 20,1976.
1
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WSG8A
of the year.4
Under Section 1411 of the Act, each such public water system is subject to regulation under the
SDWA, unless it is a system which:
(1) consists only of distribution and storage facilities (and does not have any collection
and treatment facilities).
(2) obtains all of its water from, but is not owned or operated by, a public water system to
which such regulations apply;
(3) does not sell water to any person; and
(4) is not a carrier which conveys passengers in interstate commerce, (emphasis added).5
Assuming that a system obtains its water from a public water system; does not sell water
and is not an interstate carrier, the critical issue is whether the on-site introduction of corrosion-
reducing substances into drinking water supplies constitutes "treatment facilities" within the
intended meaning of the SDWA.
The standard dictionary definition of "to treat" is "to subject to some agent or action to
bring about a particular result." Water can be "treated" with a chemical agent, such as sodium
silicate, in order to bring about a reduction in corrosion. The addition of such a substance
necessarily changes the chemical composition of the water into which it is added. As such, the
addition of chemicals into drinking water to reduce corrosion should be considered "treatment"
within the meaning of the SDWA, Section 141 l(a). The legislative history of Section 1411
makes it clear, moreover, that Congress only intended to exempt those public water systems,
such as hotels or trailer parks, which "merely store and distribute water."6
Thus, when the operator of a public water system treats drinking water to reduce
corrosion, and does not merely store and distribute it, the Section 1411 exemption is not intended
to apply.
Furthermore, the standard dictionary definition of a "facility" is "something designed to
serve a specific function." Presumably, the on-site addition of corrosion-reducing chemicals into
a water supply requires devices, holding tanks, or units to regulate the mixture. Therefore, the
4 National Interim Primary Drinking Water Regulations (NIPDWR), Section 141.2(e),
(December 24,1975).
5 SDWA, Section 1411, see House Report No. 93-1185, pp. 16-17.
6 House Report No. 93-1185, p. 17 (emphasis added).
2
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WSG8A
addition of corrosion-reducing substances into water supplies presumably requires "treatment
facilities" within the meaning of the SDWA.
Generally, the term "treatment facilities" should be interpreted broadly. Otherwise, the
unregulated proliferation of individual on-site chemical treatment of drinking water supplied by
public water systems could seriously interfere with efficient regulation of the quality of drinking
water, contrary to the purpose of the SDWA to regulate all public water systems "to protect
health to the maximum extent feasible."7
SUMMARY
Thus, for example, a hotel which serves at least twenty-five individuals, and which adds a
corrosion-reducing chemical, or any chemical, to its drinking water supply, is a public water
system which is not exempt from regulation under the SDWA.
House Report No. 93-1185, p. 1.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG9
Date Signed: November 9,1977
MEMORANDUM
SUBJECT: Federal Facilities - Option for State Coverage Under Section 1413
of the Safe Drinking Water Act, As Amended
FROM: Lorraine Chang (signed by L. Chang)
Attorney
Water Quality Division (A-131)
TO: Victor J. Kimm
Deputy Assistant Administrator
Office of Water Supply (WH-550)
QUESTION
At the Seattle Regional Water Supply meeting in September, a question was raised as to
the impact of the 1977 legislative amendments to the Safe Drinking Water Act on State primary
enforcement responsibility over federal facilities. More specifically, the issue is whether Section
1447(a) of the Act requires a State to cover federal facilities as "public water systems" as a
prerequisite for obtaining primary enforcement responsibility for the drinking water program
under Section 1413 of the Act, or whether Section 1447(a) merely authorizes State jurisdiction
over federal facilities whereupon a State would have the discretion as to whether or not to
exercise such jurisdiction.
ANSWER
I have concluded that the applicable provisions of the Safe Drinking Water Act as
amended require that a State exercise full jurisdiction over federal facilities as a prerequisite to
primacy. The legal basis for this conclusion is set forth below.
DISCUSSION
Section 1447(a) of the SDWA as amended reads as follows:
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WSG9
Each Federal agency (1) having jurisdiction over any federally
owned or maintained public water system or (2) engaged in any
activity resulting, or which may result in, underground injection
which endangers drinking water (within the meaning of section
1421 (d)) shall be subject tor and comply with, all Federal, State.
and local requirements, administrative authorities, and process and
sanctions respecting the provision of safe drinking water and
respecting any underground injection program in the same manner.
and to the same extent, as any nongovernmental entity. The
preceding sentence shall apply (A) to any requirement whether
substantive or procedural (including any recordkeeping or
reporting requirement, any requirement respecting permits, and any
other requirement whatsoever), (B) to the exercise of any Federal,
State, or local administrative authority, and (C) to any process or
sanction, whether enforced hi Federal, State, or local courts or in
any other manner. This subsection shall apply, notwithstanding
any immunity of such agencies, under any law or rule of law ....
(Emphasis added.)
The purpose of this amendment was to clarify State jurisdiction over federal facilities in
light of two Supreme Court decisions* which required "clear and unambiguous" statutory
language in order for such jurisdiction to be conferred. It was the opinion of this Office that the
statutory language in the original SDWA failed to authorize in clear and unambiguous terms the
State's authority to subject federal facilities to requirements more stringent than the national
requirements.** The 1977 amendment to Section 1447(a) of the Act, in enabling States to
impose any requirement on federal facilities (including those more stringent than the national
requirements) and explicitly waiving sovereign immunity of federal agencies, effectively
eliminates this bar against full State jurisdiction.
In directing federal facilities to be subject to and to comply with all State requirements "in
the same manner, and to the same extent, as any non-governmental entity", the explicit language
of the new Section 1447(a) demonstrates Congress' intention that federal facilities be treated as
any other public water system covered by the Act. However, this is nothing new since the House
Report accompanying the original Act specifically states:
It is the intent of the Committee that the States with primary enforcement
responsibility and EPA will treat Federally-owned or operated public water
systems ... as any other public water system... and will enforce applicable
regulations to the same extent and under the same procedures. (House Report at
p. 42)
That primary drinking water regulations must apply to all public water systems in the
State is evidenced in both the statute and the legislative history. Section 1401(1)(A) clearly
defines a "primary drinking water regulation" as one which "applies to public water systems."
Section 1411 provides that the regulations "shall apply to each public water system in each
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WSG9
State." The language in the House Report is to the same effect (see p. 1,16-17). Thus, the new
amendment merely clarified Congress' intent to require States primary enforcement responsibility
to exercise jurisdiction over federal facilities. Moreover, this is consistent with Congress' overall
philosophy that the States take the lead role in "adopting standard reviewing compliance
strategies, and where necessary bringing enforcement actions" with respect to public water
systems. (See House Report, p. 21.)
In accordance with Section 1413(a)(l) of the Act which requires that State regulations be
no less stringent than the national regulations as a condition for primacy, a State must apply its
regulations to all "public water systems" within its jurisdiction***, and this must now also
include federal facilities under Section 1447(a) of the Act, as amended. This requirement that the
scope of coverage of State drinking water programs be as broad as is legally possible is embodied
in the federal implementation regulations at 40 CFR.
§ 142.3(b) which states:
In order to qualify for primary enforcement responsibility, a State's
program for enforcement of primary drinking water regulations
must apply to all other public water systems in the State, except
for:
(1) public water systems on carriers which convey passengers in
interstate commerce;
(2) public water systems on Indian land with respect to which the
State does not have the necessary jurisdiction or its jurisdiction is
in question; or
(3) public water systems owned or maintained by a Federal agency
where the Administrator has waived compliance with national
primary drinking water regulations pursuant to Section 1447(b) of
the Act.
In addition, under Section 142.10(b)(6)(i), a State seeking primacy must demonstrate that
it possesses the:
Authority to apply State primary drinking water regulations to all
public water systems in the State covered by the national primary
drinking water regulations, except for interstate carrier
conveyances and systems on Indian land with respect to which the
State does not have the necessary jurisdiction or its jurisdiction is
in question.
Based upon the foregoing analysis of the statutory provisions of the Safe Drinking Water
Act and the federal implementation regulations, I therefore conclude that States do not have the
discretion of excluding federal facilities from the scope of coverage of their drinking water
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WSG9
programs but rather are required to exercise full jurisdiction over all public water systems,
including those owned or maintained by federal agencies.
cc: Alan Levin
NOTES:
\
*Hancock v. Train. 426 U.S. 167 (1976); EPA v. State Water Resources Control Board. 426 U.S.
200 (1976).
** Thus, it was determined that enforcement responsibility hi those States with requirements
more stringent than the national regulations would be split between the States and EPA, with
EPA taking primary enforcement responsibility as against federal facilities and the State taking
such responsibility over all other public water systems. See August 17,1976 memorandum from
G. William Frick, General Counsel, to Director of Federal Activities.
*** See Water Supply Guidance Memorandum No. 5 (Memorandum of November 29.1976
from John Ouarles to Regional Administrators) which sets forth as a minimal requirement for
primacy the condition that "The State must be able to apply State primary standards to all PWS's
that are within the State's jurisdiction, in accordance with EPA regulations."
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG10
Date Signed: December 28,1977
MEMORANDUM
SUBJECT: Guidance on Implementation of the National Interim Primary Drinking Water
Regulations (NIPDWR), 40 CFR 141.31,141.32,141.33 and 142.34
FROM: Alan Levin, Director (signed by Jim Manwaring)
State Programs Division (WH-550)
TO: Regional Water Supply Representatives
Pursuant to a memorandum from Enforcement Division, Region VII, we have carefully
examined two issues regarding EPA Regional enforcement of the National Primary Drinking
Water Regulations (NPDWR) in non-primacy States. This same guidance may be of interpretive
value to States with primacy. The two findings are:
1. EPA requires suppliers of water to report all sample results under Section 141.31 (a) in order
to determine compliance with the MCL's for coliform bacteria under Section 141.14 and 141.21.
Thus, within 40 days the supplier would have to report to the agency with primacy, the result of
all tests, measurements, or analysis, even where the minimum number required under State law
exceeds that required under Subpart C of the National Primary Drinking Water Regulations.
*2. Pursuant to 40 CFR 141.33 (b) community water systems shall maintain "records of action
taken by a system to correct violations of primary drinking water regulations." These include
actions taken by the supplier to comply with the public notification requirements of Section
141.32, since this is a necessary and integral part of mitigating violations. However, the only
regulatory mechanism available to the Regions to check compliance with the public notification
requirements is to use delegated authority under 1445(b) of the Act. By Delegation 9-12,
"Review of Records and Conducting Inspections," (WSG-14); 40 CFR 142.34 is an integral part
of the Regional enforcement mechanism. It allows the Regional Office to inspect records of the
suppliers to insure that public notification requirements have been met. To the extent water
suppliers are willing, EPA Regions are encouraged to first request suppliers to submit
information voluntarily to document the fact that they have met public notification requirements.
*NOTE: Paragraph 2 is superseded by Section 141.31 (d) that requires systems to
submit copies of PN to the State.
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WSG 11-20
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG11
Date Signed: May 8,1978
Revised: April 17,1998
Revised by: Paul Berger
MEMORANDUM
SUBJECT: Emergency Disinfection of Drinking Water - Boiling
FROM: Victor J. Kimm, Deputy Assistant (signed by Victor J. Kimm) Administrator for
Drinking Water (WH-550)
TO: Water Supply Representatives, Regions I-X
This guidance clarifies how long to boil water during a boil water advisory or other
drinking water emergency. This guidance was prompted by the fact that various agencies have
issued inconsistent instructions on the duration of boiling.
The Office of Ground Water and Drinking Water and the Centers for Disease Control
recently conducted a joint literature review on how long pathogens can survive boiling. On the
basis of this review, OGWDW and CDC recommend that water be brought to a boil for one
minute; this will inactivate all major waterborne bacterial and protozoan pathogens, including
Giardia and Cryptosporidium, Although information about the waterborne viruses is
incomplete, hepatitis A virus-considered one of the more heat-resistant waterborne viruses-is
also inactivated by boiling for one minute. If viral pathogens are suspected in drinking water in
communities at elevations above 6562 feet (2 km), the boiling time should be extended to three
minutes. This is because water boils at lower temperatures with increasing altitude. This
guidance was published hi Morbidity and Mortality Weekly Report, vol 43(36): pp: 661-663,669
(see p. 663); September 16,1994.
The recommendation of a one minute boil, at or near 100° C, refers to the total time the
water is held at the boiling point. A rolling boil should not be confused with the first sight of
dissolved oxygen being released, which occurs at a temperature far below the boiling point.
Some highly resistant organisms may survive boiling for one minute. However, the presence of a
pathogen would be extremely rare and that level of risk is acceptable.
If the water contains a significant amount of sediment or floating matter, the water should
be strained through a clean cloth into a container to remove the debris before boiling. This
treatment, however, may not remove toxic chemicals or radioactive constituents that may be
present in the water.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG11
Date Signed: May 8,1978
Revised: April 17,1998
Revised by: Paul Berger
Some data on thermal inactivation is presented below:
Table 1
Microbial Quality of Potable Water in a "Boil Water Order"*
Surviving
Water Temperature Holding Time Standard Plate Count**
°C (Seconds) Per ml
25 0 8,900
30 0 8,700
40 0 7,600
50 0 760
60 0 <1
70 0 <1
80 0 <1
90 0 < 1
100 0 <1
* Unpublished data: Drs. Martin J. Allen and John Caruthers, EPA, Cincinnati, Ohio
* * Municipal water passed through a carbon filter attachment.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG11
Date Signed: May 8,1978
Revised: April 17,1998
Revised by: Paul Berger
Table 2
Effect of Boiling on Giardia Cyst Viability*
Additional Initial Surviving cysts after
boiling time Viable cyst count addition to boiling water
(Minutes) (Cysts per field) (Cysts per field)**
0 32 <1
1 35 <1
3 33 <1
5 38 <1
10 38 <1
15 35 <1
20 63 < 1
25 46 < 1
30 63 <1
* Unpublished data: Dr. E. Meyer and A. Bingham.
** Immediately after adding 10 ml of cysts to 9 ml of boiling water, 1 ml of sample was
removed, cooled to room temperature and examined microscopically.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG11
Date Signed: May 8,1978
Revised: April 17,1998
Revised by: Paul Berger
SAFE
drinking
water
m emergencies
Public Water Supplies
Health departments and officials responsible for
public water supplies use many safeguards to protect
the sanitary quality of your drinking water.
However, this protection may break down during
emergencies caused by natural disasters, sabotage, or
enemy attack. Then the water supplied to your home
may be shut off or become dangerous to use. YOU
MUST THEN KNOW WHAT TO DO TO
PROVIDE A SAFE AND ADEQUATE SUPPLY
OF WATER FOR YOUR FAMILY.
Private Water Supplies
If you have your own source of supply, such as a
well, cistern, spring, or other private source, ask your
health department to inspect it for sanitary quality
and to show you how to keep it safe. Typhoid fever,
dysentery, and infectious hepatitis are diseases often
associated with unsafe water. They are unpleasant
and sometimes fatal. Your health officials would
rather help you keep well than to investigate why you
got sick. If you follow their advice in the
construction and operation of your private supply,
you can have confidence that, under normal
conditions, it is safe to drink. However, under
emergency or disaster conditions, particularly during
floods, these sources may also become dangerous to
use; unless you are assured otherwise by competent
advice, NO WATER CAN BE PRESUMED SAFE
AND ALL WATER SHOULD BE PURIFIED.
Travelers, Campers, Sportsmen
When you are away from the protection of approved
water supplies during periods of traveling, camping,
hunting, or fishing, you must take precautions to
make sure that available water is safe for
consumption. Remember that no matter how clear
and sparkling a brook or mountain stream may look,
it is not always safe to drink. Whenever you must
use drinking water from a source where the purity is
doubtful, ALWAYS PURIFY IT YOURSELF.
4
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG11
Date Signed: May 8,1978
Revised: April 17,1998
Revised by: Paul Berger
Emergency Sources-Out-of-Doors
If it is necessary to select an outdoor emergency
water source, remember that water from
underground, such as that obtained from wells or
springs, is less likely to contain contamination
harmful to health than water from surface sources.
However, if underground water is not available, look
next for a creek, stream, lake, or pond-in that order,
if a choice is possible. Avoid water having a dark
color, an odor, or containing floating materials, as
any one of these may indicate heavy pollution. If
possible, surface water should be obtained upstream
from an inhabited area, dipped from below die
surface AND PURIFIED.
Emergency Sources—At Home
If your home supply is interrupted, limited amounts
of water may be obtained by draining the hot water
tank or by melting ice cubes. Also, water may be
dipped from the toilet-flush tank, but this water
should be purified.
When available, water from stock tanks, irrigation
tanks, cisterns, and farm ponds may be used after
proper purification.
Purification
The following simple procedures, requiring the use
of either heat or certain chemicals, and clean
containers to the extent possible, will destroy the
usual harmful germs that may be present in water
obtained from emergency sources.
HEAT
1. Strain water through a clean cloth into a container
to remove any sediment or floating matter.
2. Boil die water vigorously for at least one full
minute.
3. After allowing the water to cool it is ready to use.
If desired, a pinch of salt added to each quart of
boiled water, or pouring it back and forth from one
clean container to another several times, will improve
the taste.
CHEMICALS
If boiling is not possible, strain the water as in Step 1
above and purify with any one of several chemicals
as follows (choice of chemical to use is based on
availability):
after nuclear attack
open water sources such as
streams
EXPOSED TO R[ADIATION]
DETERMINED S[A_J
AVAILABLE B[ )
lakes
ponds
uncovered wells
and tanks
RADIOACTIVE FALLOUT SHOULD NOT BE
USED UNLESS [SAJFE BY SPECIALLY
TRAINED MONITORING SERVICES AS [_]
THE AREA.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG12
Date Signed: July 12,1978
MEMORANDUM
SUBJECT: Definition of a Public Water System
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division (WH-550)
TO: Regional Water Supply Representatives, I-X
We requested General Counsel to provide a legal opinion and clarification of the
definition of a public water system regarding the requirement to provide water for human
consumption. The General Counsel's opinion is attached.
The essence of the opinion is a water supplier cannot exclude itself from coverage under
the Act by designating itself as a non-supplier of water for human consumption or by obtaining
consent from the consumer that they (the supplier) can provide them with water not meeting the
requirements of the regulations.
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG12A
Date Signed: June 20,1978
MEMORANDUM
SUBJECT: May a Community Public Water System Raise the Defense in an Enforcement
Proceeding that it is not a "Public Water System",
Under §1401(4) of the SDWA, Because it Does Not Provide Water for Human
Consumption?
FROM: Lorraine Chang, Attorney17 (signed by L. Chang)
Water Quality Division (A-131)
TO: James Manwaring, Chief
Drinking Water Branch (WH-550)
If a water supplier can show that it does not fit the definition of a public water system, it
may raise that defense in an enforcement proceeding. The definition is not easy to evade,
however, in view of the broad coverage and purpose of the SDWA.
The SDWA was intended to establish NPDWRs which apply to as many water suppliers
as possible. The statutory language in §1411 is clear, "NPDWR shall apply to each public water
system in each state," unless it meets the four listed criteria. The legislative history states that
such regulations "are to apply to public water systems and are to protect public health to the
maximum extent feasible." House Report 93-1185 at 1. The issue remains whether, aside from
listed exceptions, a water supplier can avoid application of NPDWR on the ground that it is not
"a system for the provision to the public of piped water for hunian consumption", as defined in
§1401(4).
The problem of community water systems attempting to evade the NPDWR is
exemplified by Saginaw-Midland, Michigan's attempt to define itself out of the Act by contract
with its customers. Two issues are raised; first, whether the water supplier, merely by saying it
does not supply its water for human consumption, although it actually is so used, can be excluded
from the §1401 definition. The second, is that even if the supplier is still considered a public
water system, whether its customers can contract away their right to safe drinking water under the
Act. The answer to both of these is no.
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WSG 12A
The first issue involves statutory construction of the phrase "for human consumption". Is
this phrase to be applied to the intent of the water supplier, as shown by his declarations or is it
determinable by the actual use to which the water is put? There is clear authority to the effect that
the actual facts should control.
In I.C.C. v. A.W. Stickle & Co.. 41 F. Supp. 268 (E.D. Okla., 1941) the court held that a
transporter of lumber who was paid for the transportation function could not avoid compliance
with the Motor Carrier Act merely by asserting mat it was engaged only in the lumber wholesale
business. The language of the Court is equally applicable to the Saginaw-Midland situation;
"It must be assumed that Congress, in defining a private carrier, did
not attempt thereby to afford a means or device whereby one might
evade the provisions applicable to common or contract carriers ....
It is the effect of the plan, of what is actually being done, rather
than the designation of it by the person concerned... that is to
govern if the beneficial results intended by the Act are to be
• attained." Id- at 273.
In S.E.C. v. American International Savings & Loan Ass'n.. 199 F. Supp. 341 (D.C. Md.,
1961) an institution which called itself a savings and loan, but which performed none of the
functions of such an organization, was held not to be entitled to an exemption from the Securities
Act of 1933 as a savings and loan. The court, relying on earlier authority, held that an entity's
designation of itself would not be upheld if it was a "gross misuse of the name." Id. at 350.
Furthermore, it has been held that "there is a presumption against a construction which
would render a statute ineffective or inefficient or which would cause grave public injury or even
inconvenience." U.S. v. Powers. 59 S.Ct. 805 (1939). An interpretation of the SDWA which
would allow water suppliers to actually supply consumers with unclean water could very easily
cause a "grave public injury."
The second issue is whether the public beneficiaries of the Safe Drinking Water Act can
waive their right to be protected by it, by the formation of a contract with a water supplier
allowing it to provide untreated water. Under principles of contract law, applied to the purpose
of the act, they cannot. .
The general rule is that if a performance rendered in a bargaining transaction is unlawful
and forbidden, the parties cannot make it lawful by declaring that as between themselves it shall
be so regarded. Corbin on Contracts at 727. On the other hand, waiver may be allowed if the
public at large will suffer no harm thereby. M- at 732.
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WSG 12A
The general rule was applied in Brooklyn S. Bank v. CWeiL 65 S.Ct. 895 (1945), in
which employees were not allowed to waive the right to recover liquidated damaged under the
Fair Labor Standards Act. The Court stated the rule that a statutory right conferred on a private
party, but affecting the public interest, may not be waived or released if such waiver or release
contravenes the statutory policy. Id at 900-901. In the absence of specific statutory language on
the question, the Court looked to broad considerations of legislative policy, as evidenced in the
legislative history and provisions and structure of the Act. Of primary importance as the fact that
the purpose of the statute was to protect the national health and well being, by protecting certain
groups in the population. Id. at 902. Other negative considerations were that such waivers
would nullify the deterrent effects of the Act and detract from its enforcement effectiveness. Id.
at 903. Also important was the fact that the statutory provision in question was mandatory in
form. Id. at 904.
Many of the same considerations also apply to the Safe Drinking Water Act. It is
unquestionable that its purpose is to protect the public health and welfare. This purpose, not
being tied to purely private rights, makes its effect even stronger than with the Fair Labor
Standards Act. Also, deterrence would be affected if water systems had a method for evading the
law with such possibilities of misuse. Water suppliers by attractive rates might effectively
"bribe" their customers to accept lower water quality, if it were allowed. Enforcement would be
hampered, for citizen suits are a part of the Act and those who had waived their rights would thus
be precluded from participating in an important mechanism for insuring high water quality.
Finally, the language in the Safe Drinking Water Act is also mandatory. Section 1411 states that
national primary drinking water regulations shall apply to each public water system in each state
unless it meets defined and non-discretionary criteria.
The SDWA intended to apply to all water suppliers who are public water systems, in fact.
Neither a change in designation by the supplier nor consent to evasion by the consumer can
narrow the coverage of the Act. A claim by a water supplier that it is not a public water system,
raised as a defense hi an enforcement action, must be supported by concrete evidence; a claim
based entirely on self-designations would not be conclusive.
I/ Nancy Warren, a law clerk with OGC's Water Division, assisted substantially hi the
preparation of this opinion.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 13
Date Signed: August 1978
MEMORANDUM
SUBJECT: Grant Allocation
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division, ODW (WH-550)
TO: Regional Water Supply Representatives, I-X
It has been brought to my attention that there is some question in regard to the definition
of a public water system for use in the grant allocation formula. Specifically, the question is, "If a
primacy State has authority to cover community water systems below 15 service connection or 25
individuals, can the State include those systems in their inventory for the purpose of receiving
additional grant funds?"
While it can be argued that the State is providing additional resources to cover smaller
systems and consequently ensuring the delivery of safe water to a larger population, we feel that
we must be consistent in the allocation of the grant funds. Accordingly, only those systems
serving 15 service connections or 25 individuals will be used in the grant allocation irrespective
of the State definition.
This decision is based upon two primary factors:
(1) The funds allotted under the Safe Drinking Water Act should be utilized to
implement the mandates (and limitations) of the Act.
(2) Most States assumed that the grant funds would be distributed on the 15/25 basis
and any change in that implied policy would be disruptive with respect to State
coverage, laws, and regulation if they attempted to maintain their percentage share
of the national authorization.
In summary, we will continue to only count those community systems serving 15 service
connections or 25 individuals or larger for the purpose of determining the grant allocation.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 14
Date Signed: September 15,1978
MEMORANDUM
SUBJECT: Guidance for Regional Review of Variances and Exemptions Granted by the
Primacy States Pursuant to the Safe Drinking Water Act
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division, ODW (WH-550)
TO: Regional Water Supply Representatives, I-X
An initial draft dated July 13,1978, of this guidance was circulated among all Regional
Water Supply Representatives. A total of six written and verbal comments were received. A
careful review of the comments revealed that most of them were helpful and therefore were
incorporated in the attached guidance document.
We are sure that, as you get into the actual review process, you are likely to think of some
things that may help improve this guidance. We urge you to pass such ideas on to Ranvir Singh
as and when they occur to you.
Attachment
NOTE: This guidance was written to apply to the review of variances and
exemptions required by the 1976 Act. The principles in it still remain
valid.
*Note: Guidance needs to be updated to reflect new V&E rules.
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WSG14
GUIDANCE FOR REGIONAL REVIEW OF STATE-GRANTED
VARIANCES AND EXEMPTIONS
PURPOSE
This memorandum provides guidance for conducting a review of the variances and
exemptions that have been granted during a one-year period beginning June 24,1977 by the
States with primary enforcement responsibility for the public water system supervision program
under the Safe Drinking Water Act (SDWA).
BACKGROUND
Sections 1415 and 1416 of the Public Health Service Act as amended by the SDWA
require the Administrator to complete a comprehensive review of the variances and exemptions
granted by the States during the one-year period, beginning on June 24,1977. This review shall
be completed not later than 18 months after the effective date of the National Interim Primary
Drinking Water Regulations. This means that the review must be completed on or before
December 24,1978. Additionally, Section 142.22 of the Implementation Regulations requires
the Administrator to conduct subsequent reviews of variances and exemptions at least once
during each three-year period following the completion of the first review. Hence, the next
required review will cover the period June 24,1978 to June 24,1981 and will be completed by
December 24,1981.
The purpose and scope of the review has been defined on page 26 of the House Report
No. 93-1185 as follows:
The committee contemplates that the Environmental Protection
Agency (EPA) will carefully review the variances (and
exemptions) which are granted by States to assure that the State
has not abused its discretion in granting variances (and
exemptions) and has not failed to impose reasonable control
measures.... This system of EPA oversight is intended by the
Committee to confer maximum responsibility on States which
make appropriate efforts to effectuate the purposes of the Act.
While some EPA review of State granted variances (and
exemptions) from national regulations was deemed necessary by
the Committee to assure the effectuation of the national policy, it is
not intended that EPA engage in a case-by-case review or
substitute its judgment for the well-exercised judgment of a
State....
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WSG14
REVIEW PERIOD
The Regional Offices should commence the review as soon as possible but no later than
November 24,1978. The review and a report for each State must be completed by December 24,
1978.
EXTENT OF REVIEW
A case-by-case review of all variances and exemptions was not intended by the Congress.
However, the Regional Office should review a sufficient number of variances and exemptions to
conclude that the State has not abused its discretion and has not failed to impose reasonable
control measures in granting variances and exemptions. Therefore, where possible, it is
recommended that at least 20% of the number of variances and exemptions granted by a State,
respectively, should be selected randomly for review.
PRE-REVIEW ACTIVITIES
The Regional Office shall publish in the Federal Register a notice of proposed review for
each State. The notice shall include:
i) Information respecting the location of data for variances and exemptions to be
reviewed including data and other information concerning new scientific matters
having an impact on the variances under consideration.
ii) Request for comments on the variances and exemptions to be reviewed and on the
need for continuing them.
As a pre-review exercise, the reviewers should become familiar with each State's
requirements for granting variances and exemptions since some States' requirements, although as
stringent, might be different from the Federal requirements.
REVIEW
The review process should consider the validity and EPA acceptability of the following
State actions:
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WSG14
A. Determination of no unreasonable risk to health
The basic premise for granting variances and exemptions is that no unreasonable risk to
health must result from ingesting drinking water that is subject to a variance or exemption. The
Regional Office should carefully review the following to determine the appropriateness and
adequacy:
i) The basis of such determination;
ii) Sources of information and other back-up materials used for making the
determination; and
Hi) Scientific/medical qualifications and experience of the person making the
determination.
B. Determination of economics as a compelling factor hi granting exemptions
Since granting of an exemption must take into account compelling factors (including
economic factors) which prevent the public water system from complying with the maximum
contaminant levels and treatment technique requirements of the National Interim Primary
Drinking Water Regulations, the Regional Office should review the adequacy and rationale for
using such factors as a basis for granting variances and exemptions. No exemption granted by a
State can be considered appropriate unless the economic analysis convincingly shows financial
hardship on users, and is made a part of the application package. Economic ^feasibility of
removal of a contaminant must be determined on the basis of a large system and not on the basis
of a small system. To do otherwise would be contrary to Congressional intent. Specifically, the
Regional Office should seek answers to the following:
i) Type, relevance and importance of the compelling factor(s); and
ii) Impact of the compelling factor(s) on the users of a water system if no exemption
was granted and the water system was to install necessary treatment facilities.
If the impact is an unreasonable economic burden, the water rate per household in relation
to the family income in the service area should be documented.
Where appropriate and necessary, Guidance on Economic Factors for Granting
Exemptions (WSG #28-3) may be utilized by the Regional Office as one of the source
documents.
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WSG 14
C. Timeliness of State actions
Variance and/or exemption requests from water systems must be reviewed and processed
on a timely basis. The SDWA establishes time requirements for completion of the various steps
in the process of reviewing and granting variances and exemptions. The regional review should
reveal the timeliness of various steps taken by the State in granting a variance or an exemption. .
D. Compliance Schedule
If the primary enforcement agency grants a public water system an exemption, the agency
shall prescribe a compliance schedule within one year of the date the exemption is granted. The
regional review should determine if the tune schedule, milestone dates and monitoring
requirements are appropriate and if the State has taken follow-up action(s) where the compliance
schedule has not been met by the water supplier. (NOTE: This provision for compliance
schedules was amended by the 1986 Amendments - schedules must be done at the time the
variance or exemption is granted.)
Attachment A provides a checklist for reviewing variances and exemptions.
POST-REVIEW ACTIVITIES
(a) As soon as the Regional Office has completed the review of variances and
exemptions granted by a State and finds that the State has exercised its judgment
well in complying with the substantive requirements and has not abused its
discretion in granting variances and exemptions, it will promptly notify the State
and publish a notice in the Federal Register outlining the results of the review,
together with findings responsive to any comments submitted in connection with
such review.
(b) If, however the Regional Office determines that the State has abused its discretion
in granting variances and exemptions, or has failed to prescribe compliance
schedules or did not impose adequate control measures in a substantial number of
cases based on the number of persons affected, the Regional Office shall notify
the State about these findings with the following information:
(1) Name and location of each public water system with respect to which the
findings were made;
(2) Specific reasons for findings;
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WSG14
(3) As appropriate, propose revocation of specific variances or exemptions, or
propose revised schedules for specific public water systems.
(c) On each notice given in (b) above, to the State, the Regional Office-shall provide
an opportunity for a public hearing.
(d) Within 180 days of the date of notice to the State in (b) above, the Regional Office
shall complete the following:
(1) Hold a public hearing, if requested and deemed necessary;
(2) Rescind the findings made in (b) above and promptly notify State; or
(3) Promulgate with any modifications as appropriate such revocation and
revised schedules proposed in the notice given in (b) above and promptly
notify the State of such action.
(4) Such revocation or revised schedules shall become effective 90 days after
the notice to State in (d)(3) above.
(e) If the State responds by taking corrective action before the effective date of the
revocation or revised schedule, the Regional Office shall review the
appropriateness and adequacy of State corrective action and take the following
action:
(1) If the findings made in (b) above become inapplicable, then the Regional
Office shall rescind the findings.
(2) If the corrective action by State is inadequate and/or inappropriate, the
revocation or revised schedule shall become effective on the due date.
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WSG14
Attachment A
Variances and Exemptions Review Checklist
Name and Address of Public Water System I.D. Number_
Reviewer
(Name, Title)
I. Variance was granted on
Variance to become effective on
Reasons
(a) Public water system cannot meet MCL because of high concentration of
naturally occurring.
(name of the contaminant)
(b) Use of specified treatment technique is not necessary to protect health of
persons.
(c) Granting of variance will not result in an unreasonable risk to health.
(i) Determination made by
(Name, Title)
(ii) Qualifications of Determiner_
(ii) Basis of Determination
(Source document, etc.)
(iv) EPA agrees with the determination, Yes No_
Compliance Schedule
A variance from MCL included a condition that the public water system will comply with the
schedule that the State will prescribe.
Yes No
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WSG14
Timeliness of Actions
(i) Notice of opportunity for public hearing on proposed variance was given
on_ .
(Before effective date)
(ii) EPA Regional Administrator was notified on
(Before granting variance)
(iii) Compliance schedule for MCL was prescribed by the State on
(Within one year of granting)
(iv) Implementation schedule for control measures was prescribe by the State
on .
(Within one year of granting)
(v) Notice of opportunity for public hearing was published on
(Date)
(vi) Notice of public hearing was published on
(Date)
(vii) Public hearing was held on
(Date)
(viii) Public hearing was not held
(ix) EPA Regional Administrator was notified on
(For variance from MCL, before granting variance)
II. Exemption was granted on .
Reasons
(a) Public water system is unable to comply with MCL or treatment technique
due to compelling factors (including economic factors).
(b) The system was in operation on June 24,1977.
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WSG14
(c) Granting will not result in an unreasonable risk to health.
(i) Determination made by .
(Name Title)
(ii) Qualifications of Determiner .
(iii) Basis for determination
(source document, etc.)
(iv) EPA agrees/does not agree with the determination.
Compliance Schedule
An exemption from MCL included a condition that the public water system will comply with the
schedule prescribed by the State.
Timeliness of Actions
(i) Schedule for compliance with MCL was prescribed by the State on
(Within one year of granting)
(ii) Schedule for implementation of control measures was prescribed by the
State on .
(Within one year of granting)
(iii) Schedule requires compliance with each MCL/treatment technique no later
than January 1,1981 or no later than January 1,1983 for
system intending to join a regional system.
(iv) An enforceable agreement to become a part of a regional public water
system was attached to the application requesting an exemption up to
January 1,1983.
Yes No
(v)
(vi) Notice of public hearing was published on
(Date)
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WSG14
(vii) Public hearing was held on . .
(Date)
(viii) Public hearing was not held
(ix) EPA Regional Administrator was notified on
(Before granting exemption)
Review approved by
(Name, Title)
10
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG15
Date Signed: January 8,1979
MEMORANDUM
SUBJECT: Questions and Answers on Non-Indian Water Supply Situations
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division, ODW (WH-550)
TO: Regional Water Supply Representatives, I-X
Region V and X have during FY 78 requested information on the legal status of public
water supply systems owned by Indian people but located on non-Indian land and non-Indian
systems located on Indian land. The same questions were asked in meetings with the Indian
Health Service.
The specific questions and answers follow:
1. First, what does the term, Indian land, mean?
Answer: The term "Indian land" is reservation land, land which is tribally owned,
or land which is owned by individual Indians and which has not been shown to be
under State jurisdiction by the attorney general to the satisfaction of the EPA
regional counsel.
In order to exercise jurisdiction over Indians under the Safe Drinking Water Act,
as amended, a State must clearly demonstrate that either a State enabling act, a
Federal statute other than P.L. 280 as amended, or an applicable treaty with an
affected Indian tribe grants the State sufficient civil and criminal jurisdiction to
enforce drinking water regulations against public water systems on Indian land.
As of the date of the signing of this Water Supply Guidance, there has been no
such demonstration by a State. Unless a State can provide a clear showing of its
jurisdiction, EPA will be required to assume primacy for the purposes of
implementing the Safe Drinking Water Act on Indian lands. Thus, hi 40 CFR
§142.3(b)(2) there is a statement that a State with primacy must apply its
regulations for the Safe Drinking Water Act to all public water systems except for:
...public water systems on Indian lands with
respect to which the State does not have the
necessary jurisdiction or its jurisdiction is in
question....
2. What deciding factors should be used to establish jurisdiction - physical location,
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WSG15
land ownership, or maintenance of the system?
Answer: The jurisdiction is based on criteria of the ownership and Federal
trustee status of the land on which the system is located.
For example, when a system is on Indian land which is in trustee relationship with
the Federal government, whether the system itself is owned or operated by a town,
municipality, the Bureau of Indian Affairs (BIA), or an Indian tribe, EPA has
jurisdiction and not the State.
3. Does an Indian owner/operator or a tribal owner/operator of a system located
wholly on non-Indian land deal with the State agency or EPA?
Answer: Any water supply system on non-Indian land will come under the
authority of the State or EPA, whichever has primacy over all other public water
systems. Where an Indian tribe or BIA is the owner or operator of such systems
they should deal with the agency which has primacy. The list of State agencies
which have primacy can be obtained from the Office of Drinking Water, EPA,
Washington, D.C. In a non-primacy State, the Public Water Supply Supervision
Program for Indian lands, as well as the other areas of the State, is implemented
by the EPA regional office.
4. Does a system located partially on non-Indian land and partly on Indian land come
under authority of a State agency with primacy or under EPA?
Answer: This determination should be made on a case-by-case basis after
discussion among the public water system, the State, the Indian people on whose
land the system is located and the appropriate EPA regional office.
There may be situations where determination of who has primacy are complicated
or where roles and responsibilities are vague. In general the sovereign status of
the Indian people should be given due recognition. Split jurisdiction and specific
roles for each agency may need to be worked out, and agree to. Historical
precedent may. be a basis for determination. The critical issue is that there be ah
effective public water supply supervision program and a specified agency to deal
with the total water system, or with specific service areas of the water system.
5. Should States be involved in implementing the drinking water program for public
water supply systems on Indian land?
Answer: Yes, however the degree of involvement of a State agency depends on
the wishes of the affected Indian tribe and legal constraints of civil and criminal
jurisdiction.
As a practical matter States should be involved in implementing programs, such
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WSG15
as by conducting sanitary surveys and providing technical assistance, for water
systems on Indian land if the Indian people or tribe agree to this arrangement. A
formal written agreement, such as a Memorandum of Understanding, may be
helpful in defining roles and responsibilities.
It is important for EPA regions to realize in working out such agreements that
from a legal standpoint even if a State does have primacy for public water systems
on non-Indian land and in addition is willing to carry out a program for systems
on Indian land, such systems are still under EPA regional primary enforcement
responsibility. Thus, unless the State has shown that by express intent of
Congress hi an applicable treaty, a State enabling Act, or Federal statute other
than P.L. 280, as amended, the State has sufficient civil and criminal jurisdiction
over non-Indian public water criminal jurisdiction over non-Indian public water
supplies on Indian land, the EPA and not the State is responsible for taking
enforcement action.
This Water Supply Guidance (WSG) supplements and does not supplant WSG-10 and
WSG-40 which establish criteria to judge whether a water system comes under primary
enforcement responsibility of EPA or of a State. It should be remembered that WSG-10 stated
that the determining factor was whether or not the land on which a public water supply system is
located on Indian land. Water Supply Guidance 40 clarified and limited WSG-10 in saying
States intending to extend primary enforcement responsibility to Indian water systems must
demonstrate sufficient civil and criminal jurisdiction to enforce its State drinking water
regulations on Indian lands.
NOTE: The 1986 Amendments allowed for granting of primacy for the PWSS Program to
Indian Tribes if they met the criteria specified in the Act. Guidance on this has
been issued separately.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG16
Date Signed: May 21,1979
Revised: November 1998
Revised by: Wendy Warren
MEMORANDUM
SUBJECT: Guidance for Implementation of 40 CFR Part 25
Public Participation Regulations in State
Public Water System Supervision Program
FROM: Alan Levin, Director (signed by Alan Levin)
State Program Division (WH-550)
TO: Regional Water Supply Representatives
An initial draft dated February 1,1979, of this guidance was circulated among all
Regional Water Supply Representatives for review and comment at our meeting in San
Francisco. Several written and verbal comments were received. As a result of these comments a
list of examples of information and/or consultation mechanisms has been included as part of the
attached guidance.
A number of comments addressed the definition of "significant decisions." The definition
was intentionally written in a manner to allow some degree of flexibility for the Regions when
evaluating and approving the States' public participation work element in the grant application.
A suggestion was made that rulemaking be included under "significant decisions." Part 25,
Public Participation Regulations (Section 25.2(a)(l) only covers State rulemaking under the
Clean Water Act and Resource Conservation and Recovery Act; therefore, it was not included.
Additionally, it was suggested that State-EPA Agreements be covered under this section. Since
Water Supply is only a small portion of these agreements this reference has not been included.
Public Participation in State-EPA Agreements will be covered under consolidated guidance for
affected programs which is currently under development.
Attachment
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WSG16
PROGRAM GUIDANCE FOR
IMPLEMENTATION OF PUBLIC PARTICIPATION REGULATIONS
(40 CFR PART 25) IN STATE PUBLIC WATER SYSTEM SUPERVISION
PROGRAM PART B - PUBLIC WATER SYSTEMS OF (PL 93-523, as Amended)
INTRODUCTION
The Public Participation Regulations (40 CFR Part 25) require that EPA, State and
Substate agencies will provide for, encourage, and assist public participation. The regulations
are intended to ensure that all interested and affected members of the public have an opportunity
to participate in the decision-making processes under covered programs.
Public participation is intended to seek accurate impressions of public attitudes by
providing adequate information and opportunity to interested and affected parties so that they can
express their views effectively. Thus, any public participation efforts must provide access to the
decision-making process, seek input from affected and interested parties, provide due
consideration to public viewpoints and demonstrate that those viewpoints have been considered
in the decision-making process.
Specifically, all public participation efforts of EPA, State and substate agencies are
expected to fulfill the following objectives:
(1) - - to assure that the public has the opportunity to understand official
programs and proposed actions, and that government understands
and fully considers public concerns;
(2) - - to assure that no significant government decision on any activity
covered under Part 25 is made without consulting interested and
affected segments of the public;
(3) to assure that government action is as responsive as possible to
public concerns;
(4) - - to encourage public involvement in implementing environmental
laws;
(5) - - to keep the public informed of significant issues and proposed
project or program changes as they arise;
(6) - - to foster a spirit of openness and mutual trust among EPA, States,
substate agencies and the public; and
(7) - - to encourage opportunities for participation and to stimulate and
support participation.
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WSG16
PURPOSE
The purpose of this guidance is to clarify and describe those elements of the public
participation regulations that impact the public water system supervision program. There will be
a discussion of significant decisions and a description of an expanded public participation work
element to be included in the State Water Supply program plans. This guidance is directed to
State agencies with primary enforcement responsibility; Regional offices exercising primacy
within other States; and States with program grants working toward the assumption of primacy.
GUIDANCE FOR SIGNIFICANT DECISIONS
In keeping with the intent of the public Participation Regulations the primacy agency or
grantee working toward the assumption of primacy should provide for and encourage public
participation in significant decisions necessary for implementation of State Public Water System
Supervision Program.
For purposes of implementing the State Public Water System Supervision Program, EPA
considers the following to be significant decisions subject to the application of public
participation requirements of the regulations:
(1) - - Program Policy Guidance: In order to implement the specific
regulatory requirements of the SDWA, the State, over time, will
develop policies and strategies based on the interpretation of State
regulatory provisions adopted pursuant to the requirements of the
National Interim Primary Drinking Water Regulations
Implementation Regulations. The impact of such policies and
strategies is often as great as that of enabling statutes and
regulations. The States should provide opportunities for public
consultation during the development stages of such policies and
strategies.
(2) - - Granting of Variances and Exemptions: Sections 1415 and 1416
of the SDWA, as amended, require that if a primacy agency grants
. .a variance or an exemption public participation in the form of
public hearings must be practiced as follows:
(a) The primacy agency must provide a notice and opportunity for public
hearing prior to granting or denying a variance to a public water system
from a MCL or specified treatment technique. The same kind of public
participation is required to be utilized in approving within a year's time the
compliance schedule for the variance.
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WSG16
(b) If the primacy agency has granted an exemption to a public water system, a
compliance schedule, must be approved within a year's time. A notice and
opportunity for public hearing is required to be provided before such a
compliance schedule is approved by the primacy agency.
PUBLIC PARTICIPATION WORK ELEMENT
The State water supply program plans submitted to EPA for approval includes grant
eligible program elements. One such element is public participation. To comply with the Public
Participation Regulations, an expanded program effort for this element is required.
The expanded public participation effort should include, as a minimum, hi the required
program plan the development of a mailing list of publics interested in water supply issues and
the development of a State public participation work plan. The work plan should identify a
schedule of public participation activities including a brief description of information and/or
consultation mechanisms to be used and points where responsiveness summaries will be
prepared.
The attached list gives some examples of information and/or consultation methods that
could be used.
Responsiveness Summaries are required for all significant decisions including those
referenced above and others which may be identified by the State or EPA. The development of a
work plan will identify future public participation program efforts to be included in the overall
State water supply program plans.
In submitting program plans the narrative portion of the plan (Part IV, Format I) should
reflect the above expanded effort and a summary of projected public participation activates
required by the SDWA. A summary of manpower and resources required for the total effort
should also be presented hi the narrative. Accomplishments of public participation activities
should be narrated in Part IV, Format II of the program plans. An approvable public
participation work plan is required for grant award and should be submitted with the grant
application. The attached check list is to be used in evaluating work plans.
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WSG 16
A mid-year evaluation of grantee public participation performance shall be carried out in
accord with Section 25.12(a)(2)(i). These evaluations shall utilize the public participation work
plan.
Responsiveness Summaries and other information as appropriate, shall be evaluated using
the attached check list. EPA responsibilities in the event of grantee failure to meet public
participation requirements are set forth in Section 25.12(a)(2)(ii).
At the next submission of the State water supply program plans for F Y 80, special
emphasis will be placed on the review of the public participation data element.
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WSG16
EXAMPLES OF INFORMATION AND/OR CONSULTATION MECHANISMS
Consultation
• public meetings
• public hearings
• review groups
• task forces
• ad hoc committees
• workshops
• seminars
• public opinion surveys
• informal personal
communications with
individuals and groups
• phone-in radio programs
Information
• fact sheets
• newsletters
• news releases
• brochures
• briefings
• seminars
• radio or TV
announcements
• responsiveness
summaries
• hotline or
info number
• summaries of technical
reports
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WSG16
CHECKLIST FOR REVIEW OF PUBLIC PARTICIPATION
WORK PLAN OR ELEMENT
AUTHORITY: 40 CFR 25.11
PURPOSE
The Public Participation Workplan or program element should clearly describe the
schedule and methods to be used to notify, inform and consult with the public throughout the
project period. The workplan should tie the schedule and methods to be used directly to the major
decision points in the grant activities. In addition, the workplan should identify staff contacts, the
target publics to be reached, and how and when the public will be informed of the disposition of
their comments. The following checklist identifies those mandatory components of the Public
Participation Work Plan:
• Staff commitment
• Budget
• Schedule of public
participation activities
• Information mechanisms described
• Consultation mechanisms described
• Responsiveness summary schedule
• Target publics identified
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WSG16
CHECKLIST FOR REVIEW OF
GRANTEE RESPONSIVENESS SUMMARY
AUTHORITY: 40CJEE25.8
PURPOSE
At key decision points, a responsiveness summary should be prepared to give the public
feedback on major issues raised, and how this input influenced grantee decisions or the rationale
for not using particular comments. At the end of the project period, the grantee should prepare a
brief analysis of the public participation program which reflects an overall qualitative evaluation
of the effectiveness of the program, as well as experience and recommendations on particular
approaches to public participation. The following checklist identifies those mandatory
components of the Responsiveness Summary:
For each responsiveness summary
• Public participation activity described
• Summary of issues raised
• Summary of major comments
• Description of modifications made
• Rationale for rejection of comments
• Additionally for the final grantee
responsiveness summary
• Grantee analysis of public participation program
It is also recommended that the grantee request evaluations from any existing advisory
group and provide an opportunity for other participating publics to contribute to the evaluation.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 17
Date Signed: June 20,1979
MEMORANDUM
SUBJECT: Guidance for Operation and Maintenance (O&M) Plans for ICCs
FROM: James F. Manwaring, Chief (signed by James Manwaring)
Drinking Water Branch (WH-550)
TO: Regional Water Supply Representatives, I-X
This memo should be considered as guidance for evaluating the Operation and
Maintenance (O&M) plans as a replacement for the quarterly bacteriological analysis. The
following has been developed from our discussions with the Interstate Carrier Conveyance (ICC)
industry and is presented for your reference.
An acceptable practice for flushing and disinfecting the drinking water systems on-board
the conveyance has been described as follows:
(1) Open all taps and completely drain water from the conveyance water tanks.
(2) A chlorine solution is fed into the conveyance water system until 100 ppm of total
residual is read at all taps.
(3) The above system is allowed to stand at least an hour and then is drained through
all taps until completely empty.
(4) The system is then refilled with drinking water from an approved source and
allowed to overflow for two minutes.
Since the O&M program is an option to be exercised in lieu of the requirement for
quarterly microbiological monitoring, the flush and disinfection procedures for on-board systems
shall be applied at least twice annually. The water service vehicles which are used to load
drinking water on the conveyance shall be included in the O&M program. Such vehicles shall be
flushed and disinfected at least once a month. In the event that this O&M procedure causes a
significant adverse effect on the conveyance operator resources, the EPA Regional Offices may
modify this requirement It is the responsibility of the conveyance operator to demonstrate that
modification of O&M procedures will not adversely affect the quality of drinking water
on-board. The records associated with the O&M procedures shall be maintained by the
conveyance operator for five years. This determination is predicated on the National Interim
Primary Drinking Water Regulations Section 141.33 - Record Maintenance.
1
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WSG17
The aforementioned example of an acceptable flush and disinfection procedure is not the
only procedure that should be considered acceptable. All procedures submitted by conveyance
operators, including alternate disinfectants, should be considered on an individual basis. The
conveyance operator shall be responsible for providing proof of the adequacy of his plan,
including information on the toxicity of alternate disinfectants to humans. Recommendations on
the acceptability of such disinfections shall be provided by EPA, ODW Headquarters, upon
request from the Region. If the conveyance on-board drinking water system or water service
vehicle water system is in any way serviced or repaired, the system shall be flushed and
disinfected prior being returned to service.
The documentation describing the O&M plan which is submitted by the conveyance
operator should contain the following:
(1) A cover letter which includes a summary of the water handling procedures and
O&M program documentation. Included in the summary should be estimated
time interval for service of conveyance drinking water system; a brief description
of the disinfection procedures; and a description of intended annual report data.
(2) Actual detailed documentation of the disinfection procedures (i.e. excerpts from
maintenance manuals and examples of maintenance inspection forms).
(3) Procedure for on-board water treatment. If carbon filters are employed on
conveyance, a description of operating procedures is required. The description
should indicate filter capacity, estimated flow rate, service interval, chlorine
residual of water used to charge on-board system and whether water is chlorinated
by operator.
The approval of the O&M plans shall have a term of one year, initially. At such time
when program experience demonstrates, the approval period may be altered.
It is important that ICC operators which choose the O&M option, have their plans
approved within three months of the June 24, implementation date. The conveyance operators
which do not have approved plans by September 24, will be required to perform a quarterly ,
bacteriological analysis of all'their conveyances, or be in violation of the regulations.
Approval of the O&M plans is the responsibility of the Regions. Assistance from
Headquarters is available on request. Any significant deviation from the O&M requirements of
this guidance should be discussed with Headquarters prior to approval by Regions. The
Headquarters concurrence stipulated in Water Supply 56A, can be handled via telephone
communication.
*May possibly be updated. Contact Steve Clark at Headquarters for further information
regarding ICC Guidances.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG18
Date Signed: July 13,1979
MEMORANDUM
SUBJECT: WSG-64 Guidance for the Issuance of
Variances* and Exemptions
FROM: Victor J. Kimm, Deputy Assistant Administrator
(signed by Victor J. Kimm)
Office of Drinking Water (WH-550)
TO: Regional Water Supply Representatives I-X
Attached is the subject guidance document which is to be used as the Office of Drinking
Water's policy on all aspects of variances and exemptions. A draft was previously circulated to
the Regions, States, and the National Drinking Water Advisory Council for their review and
comment. This guidance replaces the previous correspondence on the subject - e.g., Water
Supply Guidance (WSG) - 28,28-1,28-2. The guidance on the Regional review of State issued
variances and exemptions, WSG-55, remains in effect and should be used hi conjunction with
this guidance.
It is requested that you share this document with the States hi your Region so that they
will be aware of the policy and procedures outlined in the guidance. A thorough understanding
of the basis of our policy (Preface and Section I) by the States will clarify many of the constraints
imposed by the Safe Drinking Water Act and should minimize unnecessary confusion at the State
level.
The guidance is divided into five inter-related sections: (1) conditions for granting; (2)
economic criteria; (3) toxicology; (4) procedures; and (5) compliance agreements. Questions
regarding toxicology should be referred to Joe Cotruvo; Craig Vogt is the contact for treatment
technology, and issues regarding procedures and economics should be addressed to Jim
Manwaring. ' ..
*Note: Needs to be updated to reflect V&E rule.
NOTE: This is current guidance on variances and exemptions and should be
retained until it is superseded. Please note that the 1986 Amendments
require a compliance schedule at the time of granting the variance or
exemption. (Not within one year.) The 1986 Amendments also changed
the deadlines for exemptions. See SDWA Sections 1415 and 1416.
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WSG18
Utilization, of Variances and Exemptions
We recognize that there are non-compliance situations where a few of the States have felt
that the issuance of a variance was the only viable alternative available to them. These situations
have included new systems, systems where the construction necessary to achieve compliance
would extend past the 1981 exemption deadline, cases where the applicable treatment would be
extremely expensive for the small utility, etc. While we are sensitive to these issues, we are
constrained by the statutory provisions of the Safe Drinking Water Act. In this respect, I have
attached two additional documents for your review and reference - please insure that the States
receive copies of these also.
The first document is the legal interpretation by the Office of General Counsel regarding
the granting of variances and exemptions. The second is a copy of the relevant pages of a recent
House Committee Report on the issue of variance utilization. (See footnote on page 3 of the
report). Both of the documents clearly indicate that variances are to be restricted to only those
systems which have installed the appropriate treatment technology and are still unable to comply
with the maximum contaminant level.
In addition to this legal mandate, there are important programmatic reasons why we do
not wish to open up the eligibility for variances. If systems could obtain variances on the
grounds that compliance was not feasible for their particular system without first installing
appropriate treatment technology, the constraints imposed by exemptions would be nullified.
This could lead systems that did not want to comply to argue economic unfeasibility to delay
improvements in drinking water quality for significant periods of time.
With respect to the statutory deadline for exemptions — January 1,1981 for systems not
joining regional systems, we intend to again discuss the problem with the Congress during
oversight hearings this fall. The heart of the problem is the statutory directive to set standards
taking into account the cost of treatment for large systems. Since there are economies of scale in
water treatment, this means that some small systems cannot afford to add treatment without some
type of subsidy. When the Safe Drinking Water Act was passed in 1974, Congress recognized
mis problem and indicated that later action might be necessary. EPA expects that these problems
will be addressed by the Congress in the fall.
During the hearings early this year, EPA proposed that the deadline for exemptions be
made available to new systems where no alternative source exists and that the 1981 deadline for
compliance be extended. The crowded Congressional agendas and the concern of some members
that we could not quantify the magnitude of the problem-that is how many systems truly could
not comply without assistance rather than those systems that choose not to comply~led to the
decision to put forth a straight extension of authorities now, and consider substantive issues
during oversight hearings this fall. Prior to these hearings we will work with you and the States
to better define the national situation.
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WSG18
Actions Required
With respect to the variance and exemption issue, there are two sets of problems we face.
The first relates to avoiding the issuance of any new variances and/or exemptions which are not
hi conformance with the law.
The second is attempting to correct any variances and/or exemptions which have been
incorrectly or illegally issued hi the past. Therefore, I am requiring that the following set of
actions be taken by the Regional Offices:
1. Immediately disseminate the attached Guidance, OGC legal opinion, and House
Committee Report to the States. These documents clearly define our position on
the issues.
2. By August 15, provide us (Jim Manwaring) with a quick survey of State-issued
variances and exemptions. The information should include:
a. Number and type (contaminant) of V&Es issued;
b. Size of systems;
c. Compliance deadline established if schedules have been issued;
d. Whether the system was in operation on June 24,1977; and
e. Where feasible, identify the specific system which the State believes
cannot be in compliance by January 1,1981.
This information will be critical to us in developing our testimony for
Congress.
3. Inform the States that any inappropriately issued variances must be repealed (and
exemptions, compliance orders, etc. issued in place of a variance) as soon as
possible. By October 15,1979, we expect the States to have made the necessary
changes or to have begun administrative procedures to do so.
4. Complete a comprehensive review of all FY 1979 State-Issued V&Es by January
1,1980, (following WSG-55) and submit the reports to ODW (Jim Manwaring)
by February 1,1980. The basis for this review is the fact that many of the
inorganic problems were not detected during FY 1978 due to the phasing of
monitoring requirements in the regulations and thus, were not covered by the
January 1979 review. The authority for this review is in Sections 1415(a)(l)(F)
and 1416(d) of the Act and Section 146.22 of the Implementation Regulations.
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WSG18
The States should also understand that we do not intend to allow any inappropriate
variances to remain in effect. One alternative would be for EPA to request a declaratory
judgment from a Federal court that all such variances previously issued be invalid. Another
alternative available to us would be to initiate the revocation procedures related to variances and
exemptions associated with abuse of discretion in the Implementation Regulations, Part C,
Sections 142.20 to 142.24. This could lead to EPA-dictated changes in variances or exemptions
and related compliance schedules without necessarily revoking State primacy. These alternatives
are now being fully investigated and EPA will take action by the end of the year where illegal
variances remain in effect. Hopefully, we will be able to work out these problems with the
impacted States in a cooperative fashion without the need for formal action.
It is our position that for non-compliance systems that are acting expeditiously and hi
good faith to meet existing MCLs, States should issue exemptions to provide the systems more
time to comply as long as the situation does not pose an unreasonable risk to public health.
Compliance schedules must be issued within one year of issuance and must require compliance
by the statutory deadlines. (NOTE: 1986 SDWA Amendments require compliance schedule at
the time the variance or exemption is issued.) In the case of new systems or systems that in good
faith cannot achieve compliance by the statutory deadlines, States may exercise their enforcement
discretion to ensure compliance as expeditiously as practicable.
In conclusion, by whatever mechanisms available, EPA and the States should require as
an initial action that non-compliant systems undertake engineering studies to determine the best
means for compliance, and in cases where regionalization, alternative raw water sources, or
blending are available, they may be cheaper and preferable to additional treatment for achieving
compliance. Such efforts are critical in separating those systems that truly cannot comply without
subsidy, from those who will not comply. The former may require assistance in working with the
Farmers Home Administration (FHA) or the Small Business Administration (SBA) in order to
come into compliance while the latter may require appropriate enforcement actions.
Your cooperation in the above actions is appreciated, and we feel that their
implementation will ensure nationally consistent application of the variance and exemption
process. One copy of the Guidance is attached for your use and reference. We are hi the process
of printing the entire document for bulk shipment to the Region. We will forward 50 additional
copies to you when they are available - in the interim, you may wish to forward pertinent sections
of the guidance to the appropriate States.
Some States use the term "variances" to refer to both variances and exemptions as
distinguished by the Federal Act. For such States, it will be necessary to clarify which
type of variance has been issued.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 18A
• ' . Date Signed: May 21,1979
MEMORANDUM
SUBJECT: Variances and Exemptions from Maximum Contaminant
Levels Under the Safe Drinking Water Act
FROM: Joan Z. Bernstein (signed by David Biedart)
General Counsel (A-130)
TO: Victor J. Kimm, Deputy Assistant Administrator
Office of Drinking Water
This is in response to your request for a legal opinion concerning the issuance of
variances and exemptions from maximum contaminant levels (MCLs) under Sections 1415 and
1416 of the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et.ssa." Since the
first National Interim Primary Drinking Water Regulations (40 CFR Part 141) took effect in June
1977, an increasing number of public water systems have sought the protection afforded by a
variance or exemption. This memorandum is intended to clarify the conditions under which each
may be granted.
The conditions for granting a variance from a maximum contaminant level are specified
in Section 1415(a)(l)(A) of the Act which reads in pertinent part:
11A State which has primary enforcement responsibility for public
water systems may grant one or more variances from an applicable
national primary drinking water regulation to one or more public
water systems within its jurisdiction which, because of
characteristics of the raw water sources which are reasonably
available to the systems, cannot meet the requirements respecting
the maximum contaminant levels of such drinking water regulation
despite application of the best technology, treatment techniques, or
other means, which the Administrator finds are generally available
(taking costs into consideration.) Before a State may grant a
variance under this subparagraph, the State must find mat the
variance will not result in an unreasonable risk to health."
(Emphasis added) (42 USC §300(g)(4)).
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WSG 18A
Under Section 141 6(a), a public water system may be granted an exemption based upon
findings by the State that:
(1) due to compelling factors (which may include economic factors), the pubic water
system is unable to comply with such contaminant level...,
(2) the public water system was in operation on the effective date of such contaminant
level..., and
(3) the granting of the exemption will not result in an unreasonable risk to health."
(42 II3Ł §300(g)(5)).
Thus, both variances and exemptions may be issued to public water systems that are not
able to comply with the applicable regulations by their effective date. At this point, however, the
similarity ends. A public water system's inability to comply with the regulations may be
attributable to two very different types of problems, and variances and exemptions are intended
to address these problems separately.
Variances address the situation where a public water system is unable to comply with an
applicable MCL due to poor source water quality, despite the application of the most effective
treatment methods available. This situation was anticipated because Congress directed EPA to
establish national primary drinking water regulations based upon that which could be achieved by
public water systems with relatively uncontaminated intake waters after applying best available
technology. Congress explained its rationale as follows:
If the Administrator were to assume that intake waters would in general be extremely
contaminated, then many areas which are relatively clean could meet the maximum contaminant
levels which the Administrator would prescribe without the use of the most effective treatment
methods. This result would be inconsistent with the Committee's overriding intent to maximize
protection of the public health. (House Report No. 93-1185, p.12)
Because Congress recognized that this policy might preclude some public water systems
with extremely contaminated intake water sources from complying with the regulations, it
authorized the issuance of variances to such systems (House Report No. 93-1185, p.
In contrast, exemptions address the situation where non-compliance is attributable to
"compelling factors" such as economic constraints. In establishing national primary drinking
water regulations, EPA was also directed to base its determination of what treatment methods are
"generally available (taking cost into account)" on what might be reasonably afforded by large
metropolitan or regional public water systems. Congress thus recognized that some (especially
small) public
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WSG 18A
water systems would not be able to afford the methods determined by the Administrator to be
"generally available" thereby delaying prompt compliance with the regulations. Such systems
were specifically authorized to seek exemptions. (House Report No. 93-1185, p. 18).
This distinction between variances and exemptions is important for three major reasons.
First, the principal condition for obtaining a variance is that the public water system must have
the best technology generally available in place and operational to demonstrate that
non-compliance is attributable to poor source water quality. It would be totally inconsistent with
the Act's policy of maximizing public health protection to afford a system the protection of a
variance based merely on a demonstration by the supplier that, if it installed the best treatment, it
would not be able to comply with an applicable MCL. Rather, the statutory language is clear that
a variance is only to be granted if compliance is not achieved "despite" the supplier's having
taken all possible measures to minimize the public's exposure to the contaminant By contrast,
an exemption provides a supplier with additional time to install the requisite treatment to achieve
compliance.
It is also important to note that the determination of "best technology generally available"
is made by the Administrator when the MCL is established as a national primary drinking water
regulation. The determination is not based upon a case-by-case judgment of feasibility for a
particular system. This interpretation is compelled by the specific reference in Section 1415 to a
finding of feasibility by the Administrator rather than by the State in making the variance
determination and the close parallel between the language of Section 1415 and that language
found in Section 1412 which sets forth the requirements for establishing national primary
drinking water regulations.3'
The second reason why the distinction between variances and exemptions is an important
one is that systems which are placed into operation after the effective date of an MCL are eligible
to apply for a variance but not an exemption. Before an exemption may be granted, Section
1416(a)(2) requires a finding by the State that "the public water system was in operation on the
effective date of such contaminant level." Thus, Congress intended that compelling factors, such
as economics, not be used to enable a new system to commence operation without first being in
full compliance with the applicable requirements. On the other hand, a variance might still be
appropriate where, despite the new system's use of the most effective treatment method, it was
not able to comply due to the .poor quality of the raw water sources reasonably available to it.
Finally, Congress established different compliance timetables for variances and
exemptions. A variance or exemption must be accompanied by the issuance of a compliance
schedule within one year. Each compliance schedule must require that the public water system
come into compliance with the applicable MCL "as
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expeditiously as practicable" (Section 1415(a)(l)(A) and Section 1416(b)(2)(A)). However,
whereas the compliance schedule for an exemption requires compliance not later than January 1,
1981 or January 1,1983, if the public water system has entered into an enforceable agreement to
become part of a regional water system, no such statutory deadline is imposed for variances.
This difference reflects Congress' recognition that compliance under the circumstances of
a variance will likely depend upon the development of new or improved treatment methods or the
existence of an alternative raw water source, which solutions are not readily amenable to
mandatory statutory deadlines.
However, Congress did establish such deadlines for exemptions on the assumption that
compelling factors such as economic hardship could be mitigated over time. Notwithstanding
the problems which such deadlines may pose particularly to small water systems, compliance
schedules for exemptions which are issued not later than one year after the issuance of the
exemption must require compliance within the shortest possible time frame and may not extend
longer than the statutory deadlines. Should such deadlines prove unreasonable, Congress has
indicated that legislative changes may be considered. (House Report No. 93-1185, p. 18).
In conclusion, variances and exemptions were not intended to serve as means for public
water systems to easily or indefinitely delay compliance with maximum contaminant levels
established under the National Primary Drinking Water Regulations. Prior to the issuance of a
variance or exemption, the State is required to find that such issuance will not result in an
unreasonable risk to the health of persons served by the system (Section 1415(a)(l)(A) and
Section 1416(a)(3)). Moreover, the supplier is required to give public notification of the
existence of each variance or exemption and any failure to comply with the requirements of any
compliance schedule issued therewith (Section 1414(c)(2)). The compliance schedule itself must
require compliance "as expeditiously as practicable" and contain interim control measures and
increments of progress to be followed by the supplier while such variance or exemption is in
effect (Section 1415(a)(l)(A) and Section 1416(b)). Any requirement of a schedule on which a
variance or exemption is conditioned may be enforced as if such requirement was a part of a
national primary drinking water regulation (Section 1415(a)(l)(D) and Section 1416(b)(3)). In
return for the public water system's compliance with these requirements, the issuance of a
variance or exemption protects a system otherwise hi violation of an MCL from enforcement
action under Section 1414 as well as from "citizen suit" under Section 1449 of the Act.
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Under Section 1448(b) of the Act, the granting or the refusing to grant a variance or
exemption, and the requirements of any schedule for a variance or exemption and the failure to
prescribe a schedule, are subject to judicial review in the United States district courts. It is
therefore important for decisions respecting the issuance of variances and exemptions to be
carefully documented and that procedural protection afforded to public water systems by the Act
be strictly followed.
cc: Jeffrey Miller
All Regional Counsel
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FOOTNOTES
I/ Those sections also authorize variances and exemptions from treatment technique
requirements prescribed under Section 1412. However, since such requirements have not
yet been promulgated, this opinion will be limited to the issuance of variances and
exemptions from maximum contaminant levels.
21 Under Section 1412, the Administrator is also authorized to establish intake water quality
requirements for those contaminants from which the Administrator determines that
existing treatment techniques may be inadequate to assure achievement of the
recommended MCLs (health goals) in all circumstances. These requirements have not
been prescribed by EPA thus far but may be included in the National Revised Primary
Drinking Water Regulations. If so, variances could be granted where intake
requirements, and thus MCL output limits, were not complied with despite all reasonable
technological, economic and legal efforts to do so. (House Report No. 93-1185, p.
13-14).
3/ The variance language is actually identical to that found in Section 1412(b)(3) with
respect to the National Revised Primary Drinking Water Regulations which requires the
Administrator's determination of "feasibility" to be based upon "the use of the best
technology, treatment techniques, and other means, which the Administrator finds are
generally available (taking costs into consideration)." The language in Section 1412(a)(2)
pertaining to the establishment of National Interim Primary Drinking Water Regulations
reads: "using technology, treatment techniques, and other means, which the
Administrator determines are generally available (taking costs into consideration) on the
date of enactment of this title." In light of this difference in language, it is possible to
argue that variances were only intended to be granted from the Revised Regulations.
However, given the purpose which variances are intended to serve and the fact that the
Interim Regulations are not necessarily superseded by the Revised Regulations, it is
reasonable to conclude that variances are authorized to be granted from Interim
Regulations if the system has indeed installed "best technology" as determined by the
Administrator and is still unable to achieve compliance with the applicable regulations.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 19
Date Signed: August 21,1979
Revised: November 1998
Revised by: Wendy Warren
MEMORANDUM
SUBJECT: Illegal Use of Variance/Declaratory Judgment
FROM: Alan Levin, Director (signed by Alan Levin)
State Programs Division, ODW (WH-550)
TO: Regional Water Supply Representatives, I-X
Attached is a memorandum regarding the potential utilization of the declaratory judgment
process'for illegally issued variances - you will note that this is jointly issued by the Office of
Enforcement and the Office of General Counsel.
While we are not advocating the use of this procedure at this time, the States should be
aware of its potentiality. You may wish to share this guidance with the Regional Enforcement
Division.
I have not enclosed the attachments mentioned in the memorandum as these were
attached to original guidance document of July 13,1979.
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 19A
Date Signed: August 10,1979
MEMORANDUM
SUBJECT: Methods of Preventing States from Using Illegal Variances
FROM: William Walsh, Attorney Advisor (signed by William Walsh)
Enforcement Division, Office of Enforcement (EN-338)
Lorraine Chang, Attorney Advisor (signed by Lorraine Chang)
Water and Solid Waste Division, Office of General Counsel (A-131)
TO: Deputy Assistant Administrator for Drinking Water (WH-550) (signed)
Deputy Assistant Administrator for Water Enforcement
(EN-335) (signed)
THRU: Acting Chief of Special Enforcement Section (EN-338)
Director, Enforcement Division (EN-338)
I. Introduction
Several primacy States within the Public Water System Supervision, e.g. Texas, Virginia,
gl a[., either have or are planning to issue variances to water supply systems under circumstances
clearly prohibited by the Safe Drinking Water Act (SOW Act), 42 USC §300f fit 533. Variances
were intended to be applied to water supply systems where the source of water was so poor that it
could not meet the MCLs even after using the best available treatment technology. (See
Attachment - Memorandum from General Counsel to Deputy Assistant Administrator for
Drinking Water (May 21,1979), and EPA's Guidance for the Issuance of Variances and
Exemptions (1979) for detailed discussion of variances and exemptions.)
The States in question are issuing variances from MCLs, even though the MCLs can be
met by the application of the best available treatment technology specified by the Agency. The
suppliers, however, either simply cannot afford such a system, or could literally afford it, but
have placed a higher priority on other public health needs. Congress has recently reiterated its
intention that variances not be used in such situations. (See Attachment B: Report on Safe
Drinking Water Act Authorizations, H.R. Rep. No. 96-186,96th Cong., 1st Sess. 7n.4 (1979).)
Clearly, these States have misinterpreted the law. The Office of Drinking Water has repeatedly
and vigorously moved to correct these misinterpretations. Recently Mr. Kirnm, the Deputy
Assistant Administrator for Drinking Water, sent a memorandum to the Regions on this matter
(see Attachment C).
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WSG 19A
Mr. Kimm has also asked us to analyze the range of potential enforcement responses to
these erroneous State actions. The Agency may:
1. Do nothing and risk a disintegration of statutory framework and a total perversion
of the intent of Congress.
2. Institute an administrative action against the States under § 1413 (a) (4) of the
SOW Act and 40 CFR §§142.12-142.13 (40 CFR 142.17 - renumbered Primacy
Rule 12/89) to withdraw primacy from the State for its abuse of discretion.
3. Institute enforcement actions directly against the water supply systems with
erroneous variances under §§1414(a)(l) and 1414(b). .
4. Institute an administrative action against the State under §1415(a)(l)(G) for its
abuse of discretion. The Administrator, after the required notice and hearings,
would promulgate variance revocations. 40 CFR §§142.23-142.24 or
5. Institute a civil action against the States under the Declaratory Judgment Act, 28
U.S.C. §§2201-02, declaring all the variances at issue null and void; interpreting
the variance provision; and possibly ordering the State to rescind the variances at
issue.
Alternative 1, do nothing, has been totally rejected by the Office of Drinking Water and
Enforcement in this case because of the serious effects that such continued misinterpretation of
the statute would have on the program. As a general principle, EPA cannot countenance actions
by a State that are not in conformity with the law. Furthermore, issuing variances where
exemptions are authorized runs counter to the statutory scheme created by Congress. Congress
intended that water supply systems be placed on schedules with a firm deadline (January 1,
1981). This deadline was included in the Act to pressure water'supplies to achieve compliance in
the shortest possible time. Therefore, the result of granting these impermissible variances will be
a delay in achieving compliance and a concomitant subversion of the will of Congress.
Seeking to withdraw primacy, alternative 2, is unacceptable also. Given the nature of the
problem, i.e., the State's misinterpretation of the law, the remedy seems clearly excessive as a
first step. Withdrawal of primacy would also be disruptive to the State's drinking water program
because of the loss of Federal funds and place a severe strain on the working relationship
between EPA and the State.
Alternatives 3 and 4, enforcing against each individual water supplier or initiating an
administrative proceeding to rescind each variance, are too personnel and tune consumptive. In
either case, separate actions would be required at least in each State and against each water
supplier. The wise use of the Agency's resources dictates other solutions be used.
Filing a declaratory judgment suite (Alternative 5) seems to be the preferred course of
action. The remedy available from a declaratory judgment action precisely fits the Agency's
need, i.e. the variances in the State hi which it is brought will be void and there will be a judicial
interpretation of the variance provision that will set precedent that all States must follow.
2
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WSG 19A
Additionally, the Agency, giving the States the benefit of the doubt, prefers to assert that the
States involved have simply misinterpreted the law and not that they have abused their discretion.
Since a declaratory judgment action is confined to questions of law, not discretion, the problems
of proof will be less and a State will have an even more difficult time raising the
"unreasonableness" of an MCL as a defense or mitigating factor. Finally, under Rule 57 of the
Federal Rules of Civil Procedure an expedited hearing of a declaratory judgment action is
available. For the reasons cited above, it is recommended that if a State refuses to rescind
voluntarily the variances in question, the Agency should bring a declaratory relief action against
one offending State.
HI. Declaratory Judgement Action
The following describes the basic elements of a declaratory judgment action and how it
applies to the variance problem.
The Declaratory Judgment Act, 8 U.S.C. §2201, provides that
[i]n a case of actual controversy within its jurisdiction..., any
court of the United States upon the filing of an appropriate
pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further
relief is or could be sought. Any such declaration shall have the
force and effect of a final judgment or decree and shall be
reviewable as such. (Emphasis added.)
The Agency could seek an order requiring the State to rescind the variances at issue under
28 USC §2202 which provides that:
[fjurther necessary or proper relief based on a declaratory
judgement of decree may be granted after reasonable notice and
hearing against any adverse party whose rights have been
determined by such judgments.
Rule 57 of the Federal Rules of Civil Procedure repeats the statutory requirements and provides
for a speedy hearing, i.e.
The procedure for obtaining a declaratory judgment pursuant to
Title 28 U.S.C. §2201, shall be in accordance with these rules, and
the right to trial by jury may be demanded under the circumstances
and in the manner provided by Rules 38 and 39. The existence of
another adequate remedy does not preclude a judgment for
declaratory relief hi cases where it is appropriate. The court may
order a speedy hearing of an action for a declaratory judgment and
may advance it on the calendar. (Emphasis added.)
Additionally, because there will be no material issues of fact hi dispute, only legal
3
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WSG 19A
issues,2' a motion for a summary judgment under Rule 56 of the Federal Rules of Civil Procedure
would also be appropriate. This motion, if successful, would substantially shorten the time
between the filing of the action and the receipt of a judicial opinion.
The essential questions at issue in a declaratory judgment action in this case are:
1. Whether the United States may bring such an action;
2. Whether there is an actual controversy in this case;
3. Why the court should exercise its discretion in this case; and
4. What is the relief desired.
The United States can bring an action under the Declaratory Judgment Act, even against a
State. Public Utilities Comm'n of State of California v. United States. 355 U.S. 534 (1958);
United States v. Pennsylvania Environmental Hear. Bd.. 377 F.Supp. 545, 548 (M.D. Penn.
1974).
One test of whether there is an actual controversy is that:
[t]he controversy must be definite and concrete, touching the legal
relations of the parties having adverse legal interest. It must be a
real and substantial controversy admitting of specific relief through
a decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical state
of facts. (Emphasis added.)
AETNA Life Insurance Co. of Hartford. Conn, v. Haworth. 300
U.S. 277,240-41 (1937).
In the case of the disputed variances, there is an actual controversy. This case presents a
classical declaratory judgment issue, i.e., a dispute over a statute's meaning. The State and water
suppliers hold that the variances are lawful and issued in accordance with the Safe Drinking
Water Act and the United States argues that the variances are unlawful and totally prohibited in
these cases. There is not a hypothetical state of facts, but the facts of each water suppliers'
variance. The record will contain the undisputed facts and copies of the variances. The relief in
this case is specific, i.e., a declaration that the variances are void and unlawful, plus an order to
the State to rescind the variances. The parties in a variance case have adverse legal interest,
particularly if the water suppliers are joined as parties. There are sanctions that EPA can bring
against the State for its action and EPA will be hampered in any enforcement action by the
variances issued by the State. If the variances are declared void, the water suppliers are liable in
The granting of a declaratory judgement is within the discretion of the court. See 6 A
Moore's Federal Practice §57.08; Brillant v. Excess Inc. Co. 316 U.S. 491,494 (1942). In
deciding whether to grant a declaratory judgment courts consider the likelihood that the relief
requested will resolve the controversy, the convenience of the parties, the public interest, and the
relative convenience of other remedies. Bituminous Coal Operator's Ass'n. Inc. v. International
4
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WSG 19A
Union. United Mine Workers of America. 585 F.2d. 587 (3rd Cir., 1978). All these factors, in our
case argue in favor of the court exercising its discretion. Given the strong judicial and public
interest in protecting the public health, the fact that this action is the least intrusive into the
State's program, the convenience to all parties of resolving the issues immediately and in one
action, the long history of attempting to obtain voluntary rescissions, and the importance of a
decision to the integrity of the Safe Drinking Water Act program, the district court should have
no hesitation in exercising its discretion in this case.
As mentioned earlier, it would probably be wise to join as parties all the water suppliers
who have been issued the variances at issue. Given the nature of their interest in the outcome,
they may be necessary parties.
Conclusion
In sum of the methods for proceeding against the States who have issued unlawful
variances, a declaratory judgment action seems most suited to EPA's needs. The facts of this
situation fit clearly within the traditional pattern of a declaratory judgment case. Given the
strong legal position the Agency has, the speed with which such an action can be brought, and
the other practical advantages, this alternative is highly preferred, if it becomes necessary to go to
court against a State.
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FOOTNOTES
I/ Neither cost nor the technical feasibility of meeting a particular MCL can be factual
issues in a declaratory judgment proceeding. Those factors will have already been taken
into consideration in determining the best technology treatment techniques. Section
1415(a)(l)(A). See 40 CFR § 142.40. See EPA, Manual of Treatment Techniques for
meeting the Interim Primary Drinking Water Regulations (1977). Also, gnly the
Administrator, and not States, can make this determination. The determination is a
uniform national decision and not a case-by-case decision. Section 1415 (a)(l)(A). As a
practical matter this problem has arisen primarily with regard to variances from fluoride
MCLs. There is no realistic impossibility argument, only an argument that, given the
economic situation of the small water supplier, the expense is too great. In Getty Oil Co.
v. Ruckelshaus. 467 F.2d 349, 356 (3d Cir., 1972), the court held that a polluter could not
use the Declaratory Judgment Act to challenge "whether the regulation is unnecessary,
unreasonable, or capricious,.." because the statute (the Clean Air Act) specifically
designated a mechanism for judicial review of such matters. Since the polluter had not
challenged the underlying regulations he could not challenge them in a declaratory
judgement action. The Safe Drinking Water Act's judicial review provision is derived
from the Clean Air Act. 120 Cong. Rec. §20243 (daily ed. Nov. 26,1974). It too
provides a specific method of challenging the unreasonableness of the regulations.
Section 1448. Although not dispositive of the issue, this case supports the view that a
district court should not review the reasonableness of the MCL in a declaratory judgment
action. Finally, a motion for partial summary judgment can always be made on the legal
issues alone, if the court decides that there are factual issues.
21 The courts have held that a declaratory judgment "is not to be declined merely because of
the existence of another remedy ..." Yellow Cab Co. v. City of Chicago 186 F.2d 946,
950 (7th Cir., 1951). The plain language of 28 USC §2201 and Rule 57 of the Rules of
Civil Procedure, quoted in the text, above, specifically state that other adequate remedies
do not preclude a declaratory judgment. The administrative remedy provided in
§1415(a)(l)(C) need not to be exhausted before a declaratory judgment is issued because
the result of the administrative proceeding leaves the legal issue unresolved and only
attaches the questions to a particular litigant. See Public Utilities Comm'n of the State of
California v. United States. 355 U.S. 532, 539-40 (1958). Furthermore, the doctrine of
exhaustion of remedies usually applies to a person who has failed to pursue his legal
rights before an Agency, not against an Agency.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG20
' ; 'T " Date Signed: January 24,1980
MEMORANDUM
SUBJECT: Use of Grant Funds for Data Management Activities
FROM: Victor J. Kimm (signed by Victor J. Kimm)
Deputy Assistant Administrator for Drinking Water (WH-550)
TO: Region I-X Water Supply Branch Chiefs
I. Background
In anticipation of the passage of the Safe Drinking Water Act (SDWA), the Office of
Drinking Water (ODW) initiated a study to plan for the information systems necessary for the
successful implementation of the Act. One of the results of that study was a recommendation
that EPA develop a State-oriented data management system.
As a result of the feasibility study, ODW initiated the development of the Model State
Information Systems (MSIS). MSIS had one primary purpose, i.e., to provide common data
management functions, consistent with the program. This was accomplished by providing
capabilities for maintaining public water supply inventory information, perform a consistent and
cost effective determination of compliance of water supplies against applicable Regulations,
maintaining information on enforcement actions an variances and exemptions, and submitting the
information required in the annual report.
MSIS operates on large scale computers manufactured by Henle, IBM and UNIVAC.
The IBM version operates at the EPA's Washington Computer Center (WCC), and is available
both to EPA Regions and to States choosing to use WCC as their State designated computer
center.
II. OMB Circular A-90 .
The Office of Management and Budget (OMB) Circular A-90 outlines government
policies with regard to the installation of computers and the use of computer programs within the
States. The basic policy is that the Federal government cannot require a State to install or use
specific computers or computer programs.
NOTE: MSIS has been superseded by FRDS 2.0.
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WSG20
On the other hand, OMB Circular A-90 also prohibits the use of Federal grant funds by
States for developing computer programs when such computer programs already exist and have
been offered to the States by the Federal government. The purpose of such a provisions, of
course, is to prevent public monies from being expended when such a capability is already
available to a State government.
An opinion was sought from the Office of General Counsel (OGC) on whether MSIS fell
within the provisions of OMB Circular A-90. It is the opinion of OGC that MSIS does indeed
fall within OBM circular a-90. For your convenience, I am attaching a copy of their response.
III. Guidance
To carry out the OGC opinion, it is very important that all proposed grant requests for
data management funds be carefully reviewed for conformance with OMB Circular A-90.
Failure to perform a thorough review could result in States having to return such monies upon
audit.
Generally, data management funds can be used for activities which include:
1. Computer resources - This usually encompasses direct charges for use of a State's
designated computer center. Such charges usually include computer time, data
storages, computer supplies (e.g., computer paper, disk packs, computer tapes),
etc.
2. Data preparation - charges in this category usually results from activities required
to prepare information onto a computer readable media. This may be
accomplished by keypunching, key entry, etc.
3. Personnel - Charges for personnel (e.g., computer systems analyst, computer
programmers) can only be used for the development of reports from stem or for
development and implementation of capabilities not in MSIS. New capabilities
might supplement or extend capabilities not in MSIS.
4. Computer Equipment - These typically might include data terminals which
communicate with State's designated computer centers.
5. Miscellaneous - Charges in this category might include data communications
modems, data communication charges from a public utility, etc.
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WSG20
During the grant negotiations with our individual Starts, close attention must be paid to
this area. During the headquarters Regional evaluation the request for data management funds
from your States will be carefully reviewed. Those expenditures which are at variance with
OMB circular A-90 will be indicated.
Headquarters Computer systems Staff and Drinking Water Branch personnel are available
to work with you in reviewing a State's proposed expenditure. I recommend that you take
advantage of this opportunity prior to approving such expenditures by calling Tom Martin at
(426-9805) or Jim Manwaring at (472-4152).
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WSG 21-30
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG21
Date Signed: April 6,1981
MEMORANDUM
SUBJECT: Procedures for Rounding-Off Analytical Data to Determine Compliance with
Maximum Contaminant Levels Present in NIPDWR
FROM: Joseph A. Cotruvo, Ph.D., Director
Criteria and Standards Division, ODW (WH-550)
TO: Water Supply Representatives, Regions I-X, and holders of the Water Supply
Guidance Series
All Maximum Contaminant Levels (MCL) contained in the National Interim Primary Drinking
Water Regulations are expressed in the number of significant digits permitted by the precision
and accuracy of the specified analytical procedure(s). Data reported to the State or EPA should
be in a form containing the same number of significant digits as the MCL. In calculating data for
compliance purposes, it is necessary to round-off by dropping the digits that are not significant.
The last significant digit should be increased by one unit if the digit dropped is 5,6,7, 8 or 9. If
the digit is 0,1,2,3, or 4, do not alter the preceding number.
For example, if the monthly mean for coliform bacteria is 1.4999, the reported result should be 1
(one). A result of 3.50 should be rounded to 4 (four).
Chemical and radiological data may be treated in like manner. Analytical results for mercury of
0.0016 would round off to 0.002 while 5.4 pCi/1 of combined radium-226 and radium-228 would
round down to 5 pCi/1.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 22
Date Signed: January 27,1983
Revised: December 1999
MEMORANDUM
SUBJECT: Problems Associated with Disinfectant Changes
FROM: Victor J. Kimm, Director (signed by Victor J. Kimm)
Office of Drinking Water (WH-550)
j
TO: Holders of Water Supply Guidance Manual
The Office of Drinking Water has received reports of problems resulting from some water
systems changing from free chlorination to the use of chloramines in an effort to reduce
disinfection by-product formation. Most commonly, owners and distributors of tropical fish have
reported losses.
Of even greater potential significance, there have been reports of hemolytic anemia
occurrence in patients on kidney dialysis when chloramines are present in the dialysis water.
While water used hi dialysis should be treated to remove potentially harmful chemicals, such
treatment is sometimes omitted.
The guidance recommends that utilities changing disinfectants notify the public of the
change, and that hospitals, kidney dialysis facilities and fish breeders be alerted to the potential
significance of the change.
Attachment
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Background
For years, many public water systems have added chloramines (chlorine plus ammonia) to
drinking water as a primary or secondary disinfectant. Also, when breakpoint chlorination is not
practiced, both inorganic and organic chloramines may be present in finished drinking water.
Because of concern regarding the formation of disinfection by-products from disinfectants and
organic matter, and in some cases because of requirements for compliance with drinking water
regulations limiting disinfection by-product concentrations, a number of water supply systems
have switched, or are contemplating switching, from chlorine to chloramine or chlorine dioxide
as their primary disinfectant. Any water supply which plans to change disinfectants should be
made aware of the potential problems created by such a change, and should notify consumers,
particularly those most likely to be affected hi advance of the change. Care should also be taken
to avoid unnecessarily high levels of combined residuals.
A potentially serious problem arises when tap water containing chloramines is used in
hemodialysis (artificial kidney machines). Chloramines pass through the dialysis membrane and
their toxicity to patients under dialysis conditions is undisputed (Eaton et al. 1973). Chlorine
dioxide and its by-products may have similar effects. Operators of dialysis centers know that tap
water must be treated before use in dialysis. The Association for the Advancement of Medical
Instrumentation has proposed a limit of O.lmg/L for chloramine in hemodialysis water. It is
imperative that dialysis centers and users of home dialysis systems be informed that chloramines
or chlorine dioxide are to be used in the public water system and that treatment to remove them is
essential. Other substances in tap water besides chloramines are also known to interfere with
dialysis. These include copper, fluoride, sulfate, nitrate, zinc and aluminum. The types of
controls available to users include carbon filtration and reverse osmosis or chemical reduction.
The toxicity of chloramine to fish is well-known. Most breeders and owners of tropical
or other aquarium fish know that tap water should not be used hi aquaria without proper
treatment and aging. Yet, a number of .cases of aquarium fish being killed by chloramine in tap
water have been reported, particularly when conversion between disinfection methods has
occurred at the treatment plant. Since chloramine is more persistent than free chlorine (which is
also toxic to fish), treatment and aging of water to be used in aquaria is more critical when
chloramine is present. Suggested action for fish fanciers, breeders, or pet shop owners includes
the use of activated carbon filters. Care needs to be taken to replace filter cartridges before
breakthrough can occur.
Guidance
In addition to the regulatory requirements to consult with the primacy agent prior to making a
significant modification to their disinfection practices, the Office of Ground Water and Drinking
Water recommends that utilities changing disinfectants notify the public of the change and that
this notification, the text and announcement schedule be included in the plan. In particular the
notification should include hospitals, kidney dialysis facilities and fish breeders.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG23
- Date Signed: November 8,1984
MEMORANDUM
SUBJECT: Indian Policy Implementation Guidance
FROM: AlvinL.Alm
Deputy Administrator
TO: Assistant Administrators
Regional Administrators
General Counsel
INTRODUCTION
The Administrator has signed the attached EPA Indian Policy. This document sets forth
the broad principles that will guide the Agency in its relations with American Indian Tribal
Governments and hi the administration of EPA programs on Indian reservation lands.
This Policy concerns more than one hundred federally-recognized Tribal Governments
and the environment of a geographical area that is larger than the combined area of the States of
Maryland, New Jersey, Connecticut, Massachusetts, Vermont, New Hampshire and Maine. It is
an important sector of the country, and constitutes the remaining lands of America's first
stewards of the environment, the American Indian Tribes.
The Policy places a strong emphasis on incorporating Tribal Governments into the
operation and management of EPA's delegable programs. This.concept is based on the
President's Federal Indian Policy published on January 24,1983 and the analysis,
recommendations and Agency input to the EPA Indian Work Group's Discussion Paper,
Administration of Environmental Programs on American Indian Reservations (July 1983).
TIMING AND SCOPE
Because of the importance of the reservation environments, we must begin immediately
to incorporate the principles of EPA's Indian Policy into the conduct of our everyday business.
Our established operating procedures (including long-range budgetary and operational planning
activities) have not consistently focused on the proper role of Tribal Governments or the special
legal and political problems of program management on Indian lands. As a result, it will require
a phased and sustained effort over tune to fully implement the principles of the Policy and to take
the steps outlined in this Guidance.
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Some Regions and Program Offices have already made individual starts along the lines of
the Policy and Guidance. I believe that a clear Agency-wide policy will enable all programs to
build on these efforts so that, within the limits of our legal and budgetary constraints, the Agency
as a whole can make respectable progress in the next year.
As we begin the first year of operations under the Indian Policy, we cannot expect to
solve all of the problems we will face hi administering programs under the unique legal and
political circumstances presented by Indian reservations. We can, however, concentrate on
specific priority problems and issues and proceed to address these systematically and carefully hi
the first year. With this general emphasis, I believe that we can make respectable progress and
establish good precedents for working effectively with Tribes. By working within a manageable
scope and pace, we can develop a coordinated base which can be expanded, and, as appropriate,
accelerated in the second and third years of operations under the Policy.
In addition to routine application of the Policy and this Guidance hi the conduct of our
everyday business, the first year's implementation effort will emphasize concentrated work on a
discrete number of representative problems through cooperative programs or pilot projects. In
the Regions, this effort should include (he identification and initiation of work on priority Tribal
projects. At Headquarters, it should involve the resolution of the legal, policy and procedural
problems which hamper our ability to implement the kinds of projects identified by the Regions.
The Indian Work Group (IWG), which is chaired by the Director of the Office of Federal
Activities and composed of representatives of key regional and headquarters offices, will
facilitate and coordinate these efforts. The IWG will begin immediately to help identify the
specific projects which may be ripe for implementation and the problems needing resolution in
the first year.
Because we are starting in "mid-stream," the implementation effort will necessarily
require some contribution of personnel tune and funds. While no one program will be affected in
a major fashion, almost all Agency programs are affected to some degree. I do not expect the
investment hi projects on Indian Lands to cause any serious restriction hi the States' funding
support or in their ability to function effectively. To preserve the flexibility of each Region and
each program, we have not set a target for allocation of FY 85 funds. I am confident, however,
that Regions and program offices can, through readjustment of existing resources, demonstrate
significant and credible progress in the implementation of EPA's Policy in the next year.
ACTION
Subject to these constraints, Regions and program managers should now initiate actions
to implement the principles of the Indian Policy. The eight categories set forth below will direct
our initial implementation activities. Further guidance will be provided by the Assistant
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Administrator for External Affairs as experience indicates a need for such guidance.
1. THE ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS WILL SERVE
AS LEAD AGENCY CLEARINGHOUSE AND COORDINATOR FOR INDIAN POLICY
MATTERS.
This responsibility will include coordinating the development of appropriate Agency
guidelines pertaining to Indian issues, the implementation of the Indian Policy and this Guidance.
In this effort the Assistant Administrator for External Affairs will rely upon the assistance and
support of the EPA Indian Work Group.
2. THE INDIAN WORK GROUP (IWG) WILL ASSIST AND SUPPORT THE
ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS IN DEVELOPING AND
RECOMMENDING DETAILED GUIDANCE AS NEEDED ON INDIAN POLICY AND
IMPLEMENTATION MATTERS. ASSISTANT ADMINISTRATORS, REGIONAL
ADMINISTRATORS AND THE GENERAL COUNSEL SHOULD DESIGNATE
APPROPRIATE REPRESENTATIVES TO THE INDIAN WORK GROUP AND PROVIDE
THEM WITH ADEQUATE TIME AND RESOURCES NEEDED TO CARRY OUT THE
IWG'S RESPONSIBILITIES UNDER THE DIRECTION OF THE ASSISTANT
ADMINISTRATOR FOR EXTERNAL AFFAIRS.
The Indian Work Group, (IWG) chaired by the Director of the Office of Federal
Activities, will be an important entity for consolidating the experience and advice of the key
Assistant and Regional Administrators on Indian Policy matters. It will perform the following
functions: identify specific legal, policy, and procedural impediments to working directly with
Tribes on reservation problems; help develop appropriate guidance for overcoming such
impediments; recommend opportunities for implementation of appropriate programs or pilot
projects; and perform other services in support of Agency managers in implementing the Indian
Policy.
The initial task of the IWG will be to develop recommendations and suggest priorities for
specific opportunities for program implementation in the first year of operations under the Indian
Policy and this Guidance.
To accomplish this, the General Counsel and each Regional and Assistant Administrator
must be actively represented on the IWG by a staff member authorized to speak for his or her
office. Further, the designated representative(s) should be afforded the time and resources,
including travel, needed to provide significant staff support to the work of the IWG.
3. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD UNDERTAKE
ACTIVE OUTREACH AND LIAISON WITH TRIBES, PROVIDING ADEQUATE
INFORMATION TO ALLOW THEM TO WORK WITH US IN AN INFORMED WAY.
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In the first thirteen years of the Agency's existence, we have worked hard to establish
working relationships with State Governments, providing background information and sufficient
interpretation and explanations to enable them to work effectively with us in the development of
cooperative State programs under our various statutes. In a similar manner, EPA managers
should try to establish direct, face-to-face contact (preferably on the reservation) with Tribal
Government officials. This liaison is essential to understanding Tribal needs, perspectives and
priorities. It will also foster Tribal understanding of EPA's programs and procedures needed to
deal effectively with us.
4. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD ALLOCATE
RESOURCES TO MEET TRIBAL NEEDS, WITHIN THE CONSTRAINTS IMPOSED BY
COMPETING PRIORITIES AND BY OUR LEGAL AUTHORITY.
As Tribes move to assume responsibilities similar to those borne by EPA or State
Governments, an appropriate block of funds must be set aside to support reservation abatement,
control and compliance activities.
Because we want to begin to implement the Indian Policy now, we cannot wait until FY
87 to formally budget for programs on Indian lands. Accordingly, for many programs, funds for
initial Indian projects in FY 85 and FY 86 will need to come from resources currently planned
for support to EPA- and State-managed programs meeting similar objectives. As I stated earlier,
we do not expect to resolve all problems and address all environmental needs on reservations
immediately. However, we can make a significant beginning without unduly restricting our
ability to fund ongoing programs.
I am asking each Assistant Administrator and Regional Administrator to take measures
within his or her discretion and authority to provide sufficient staff time and grant funds to allow
the Agency to initiate projects on Indian lands in FY 85 and FY 86 that will constitute a
respectable step towards implementation of the Indian Policy.
5. ASSISTANT AND REGIONAL ADMINISTRATORS, WITH LEGAL SUPPORT
PROVIDED BY THE GENERAL COUNSEL, SHOULD ASSIST TRIBAL GOVERNMENTS
IN PROGRAM DEVELOPMENT AS THEY HAVE DONE FOR THE STATES.
The Agency has provided extensive staff work and assistance to State Governments over
the years in the development of environmental programs and program management capabilities.
This assistance has become a routine aspect of Federal/State relations, enabling and expediting
the States' assumption of delegable programs under the various EPA statutes. This "front end"
investment has promoted cooperation and increased State involvement in the regulatory process.
As the Agency begins to deal with Tribal Governments as partners in reservation
environmental programming, we will find a similar need for EPA assistance. Many Regional
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and program personnel have extensive experience in working with States on program design and
development; their expertise should be used to assist Tribal Governments where needed.
6. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE
GENERAL COUNSEL SHOULD TAKE ACTIVE STEPS TO ALLOW TRIBES TO
PROVIDE INFORMED INPUT INTO EPA'S DECISION-MAKING AND PROGRAM
MANAGEMENT ACTIVITIES WHICH AFFECT RESERVATION ENVIRONMENTS.
Where EPA manages Federal programs and/or makes decisions relating directly or
indirectly to reservation environments, full consideration and weight should be given to the
public policies, priorities and concerns of the affected Indian Tribes as expressed through their
Tribal Governments. Agency managers should make a special effort to inform Tribes of EPA
decisions and activities which can affect their reservations and solicit their input as we have done
with State Governments. Where necessary, this should include providing the necessary
information, explanation and/or briefings needed to foster the informed participation of Tribal
Governments in the Agency's standard-setting and policy-making activities.
7. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD, TO THE
MAXIMUM FEASIBLE EXTENT, INCORPORATE TRIBAL CONCERNS, NEEDS AND
PREFERENCES INTO EPA'S POLICY DECISIONS AND PROGRAM MANAGEMENT
ACTIVITIES AFFECTING RESERVATIONS.
It has been EPA's practice to seek out and accord special consideration to local interests
and concerns, within the limits allowed by our statutory mandate and nationally established
criteria and standards. Consistent with the Federal and Agency policy to recognize Tribal
Governments as the primary voice for expressing public policy on reservations, EPA managers
should, within the limits of their flexibility, seek and utilize Tribal input and preferences in those
situations where we have traditionally utilized State or local input.
We recognize that conflicts in policy, priority or preference may arise between States and
Tribes as it does between neighboring States. As in the case of conflicts between neighboring
States, EPA will encourage early communication and cooperation between Tribal and State
Governments to avoid and resolve such issues. This is not intended to lend Federal support to
any one party in its dealings with the other. Rather, it recognizes that in the field of
environmental regulation, problems are often shared and the principle of comity between equals
often serves the interests of both.
Several of the environmental statutes include a conflict resolution mechanism which
enables EPA to use its good offices to balance and resolve the conflict. These procedures can be
applied to conflicts between Tribal and State Governments that cannot otherwise be resolved.
EPA can play a moderating role by following the conflict resolution principles set by the statute,
the Federal trust responsibility and the EPA Indian Policy.
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8. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE
GENERAL COUNSEL SHOULD WORK COOPERATIVELY WITH TRIBAL
GOVERNMENTS TO ACHIEVE COMPLIANCE WITH ENVIRONMENTAL STATUTES
AND REGULATIONS ON INDIAN RESERVATIONS, CONSISTENT WITH THE
PRINCIPLE OF INDIAN SELF-GOVERNMENT.
The EPA Indian Policy recognizes Tribal Governments as the key governments having
responsibility for matters affecting the health and welfare of the Tribe. Accordingly, where
tribally owned or managed facilities do not meet Federally established standards, the Agency will
endeavor to work with the Tribal leadership to enable the Tribe to achieve compliance. Where
reservation facilities are clearly owned or managed by private parties and there is no substantial
Tribal interest or control involved, the Agency will endeavor to act in cooperation with the
affected Tribal Government, but will otherwise respond to noncompliance by private parties on
Indian reservations as we do to noncompliance by the private sector off-reservation.
Actions to enable and ensure compliance by Tribal facilities with Federal statutes and
regulations include providing consultation and technical support to Tribal leaders and managers
concerning the impacts of noncompliance on Tribal health and the reservation environment and
steps needed to achieve such compliance. As appropriate, EPA may also develop compliance
agreements with Tribal Governments and work cooperatively with other Federal agencies to
assist Tribes in meeting Federal standards.
Because of the unique legal and political status of Indian Tribes in the Federal System,
direct EPA actions against Tribal facilities through the judicial or administrative process will be
considered where the Agency determines, in its judgment, that: (1) a significant threat to human
health or the environment exists, (2) such action would reasonably be expected to achieve
effective results in a timely manner, and (3) the Federal Government cannot utilize other
alternatives to correct the problem in a timely fashion. Regional Administrators proposing to
initiate such action should first obtain concurrence from the Assistant Administrator for
Enforcement and Compliance Monitoring, who will act in consultation with the Assistant
Administrator for External Affairs and the General Counsel. In emergency situations, the
Regional Administrator may issue emergency Temporary Restraining Orders, provided that the
appropriate procedures set forth in Agency delegations for such actions are followed.
9. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE
GENERAL COUNSEL SHOULD BEGIN TO FACTOR INDIAN POLICY GOALS INTO
THEIR LONG-RANGE PLANNING AND PROGRAM MANAGEMENT ACTIVITIES,
INCLUDING BUDGET, OPERATING GUIDANCE, MANAGEMENT ACCOUNTABILITY
SYSTEMS AND PERFORMANCE STANDARDS.
In order to carry out the principles of the EPA Indian Policy and work effectively with
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Tribal Governments on a long-range basis, it will be necessary to institutionalize the Agency's
policy goals in the management systems that regulate Agency behavior. Where weliave
systematically incorporated State needs, concerns and cooperative roles into our budget,
Operating Guidance, management accountability systems and performance standards, we must
now begin to factor the Agency's Indian Policy goals into these same procedures and activities.
Agency managers should begin to consider Indian reservations and Tribes when
conducting routine planning and management activities or carrying out special policy analysis
activities. In addition, the IWG, operating under the direction of the Assistant Administrator for
External Affairs and with assistance from the Assistant Administrator for Policy, Planning and
Evaluation, will identify and recommend specific steps to be taken to ensure that Indian Policy
goals are effectively incorporated and institutionalized in the Agency's procedures and
operations.
Attachment
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EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL PROGRAMS ON
INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24,1983, supporting the
primary role of Tribal Governments in matters affecting American Indian reservations. That
policy stressed two related themes: (1) that the Federal Government will pursue the principle of
Indian "self-government" and (2) that it will work directly with Tribal Governments on a
"government-to-government" basis.
The Environmental Protection Agency (EPA) has previously issued general statements of
policy which recognize the importance of Tribal Governments in regulatory activities that impact
reservation environments. It is the purpose of this statement to consolidate and expand on
existing EPA Indian Policy statements in a manner consistent with the overall Federal position in
support of Tribal "self-government" and "government-to-government" relations between Federal
and Tribal Governments. This statement sets forth the principles that will guide the Agency in
dealing with Tribal Governments and in responding to the problems of environmental
management on American Indian reservations in order to protect human health and the
environment. The Policy is intended to provide guidance for EPA program managers in the
conduct of the Agency's congressionally mandated responsibilities. As such, it applies to EPA
only and does not articulate policy for other Agencies in the conduct of their respective
responsibilities.
It is important to emphasize that the implementation of regulatory programs which will
realize these principles on Indian Reservations cannot be accomplished immediately. Effective
implementation will take careful and conscientious work by EPA, the Tribes and many others. In
many cases, it will require changes in applicable statutory authorities and regulations. It will be
necessary to proceed in a carefully phased way, to learn from successes and failures, and to gain
experience. Nonetheless, by beginning work on the priority problems that exist now and
continuing in the direction established under these principles, over time we can significantly
enhance environmental quality on reservation lands.
POLICY
In carrying out our responsibilities on Indian reservations, the fundamental objective of
the Environmental Protection Agency is to protect human health and the environment. The
keynote of this effort will be to give special consideration to Tribal interest in making Agency
policy, and to insure the close involvement of Tribal Governments in making decisions and
managing environmental programs affecting reservation lands. To meet this objective, the
Agency will pursue the following principles:
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1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL
GOVERNMENTS ON A ONE-TO-ONE BASIS (THE "GOVERNMENT-TO-
GOVERNMENT" RELATIONSHIP), RATHER THAN AS SUBDIVISIONS OF OTHER
GOVERNMENTS.
EPA recognizes Tribal Governments as sovereign entities with primary authority and
responsibility for the reservation populace. Accordingly, EPA will work directly with Tribal
Governments as the independent authority for reservation affairs, and not as political
subdivisions of States or other governmental units.
2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY
PARTIES FOR SETTING STANDARDS, MAKING ENVIRONMENTAL POLICY
DECISIONS AND MANAGING PROGRAMS FOR RESERVATIONS, CONSISTENT WITH
AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the agency will view Tribal
Governments as the appropriate non-Federal parties for making decisions and carrying out
program responsibilities affecting Indian reservations, their environments, and the health and
welfare of the reservation populace. Just as EPA's deliberations and activities have traditionally
involved the interests and/or participation of State Governments, EPA will look directly to Tribal
Governments to play this lead role for matters affecting reservation environments.
3. THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST
TRIBES IN ASSUMING REGULATORY AND PROGRAM MANAGEMENT
RESPONSIBILITIES FOR RESERVATION LANDS.
The Agency will assist interested Tribal Governments in developing programs and in
preparing to assume regulatory and program management responsibilities for reservation lands.
Within the constraints of EPA's authority and resources, this aid will include providing grants
and other assistance to Tribes similar to that we provide State Governments. The Agency will
encourage Tribes to assume delegable responsibilities, (i.e. responsibilities which the Agency has
traditionally delegated to State Governments for non-reservation lands) under terms similar to
those governing delegations to States.
Until Tribal Governments are willing and able to assume full responsibility for delegable
programs, the Agency will retain responsibility for managing programs for reservations (unless
the State has an express grant of jurisdiction from Congress sufficient to support delegation to
the State Government). Where EPA retains such responsibility, the Agency will encourage the
Tribe to participate in policy-making and to assume appropriate lesser or partial roles in the
management of reservation programs.
4. THE AGENCY WILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING
LEGAL AND PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND
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WSG23
EFFECTIVELY WITH TRIBAL GOVERNMENTS ON RESERVATION PROGRAMS.
A number of serious constraints and uncertainties in the language of our statutes and
regulations have limited our ability to work directly and effectively with Tribal Governments on
reservation problems. As impediments in our procedures, regulations or statutes are identified
which limit our ability to work effectively with Tribes consistent with this Policy, we will seek to
remove those impediments.
5. THE AGENCY, IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY,
WILL ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED
WHENEVER EPA'S ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION
ENVIRONMENTS.
EPA recognizes that a trust responsibility derives from the historical relationship between
the Federal Government and Indian Tribes as expressed hi certain treaties and Federal Indian
Law. In keeping with that trust responsibility, the Agency will endeavor to protect the
environmental interests of Indian Tribes when carrying out its responsibilities that may affect the
reservations.
6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL, STATE
AND LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL PROBLEMS OF
MUTUAL CONCERN.
Sound environmental planning and management require the cooperation and mutual
consideration of neighboring governments, whether those governments be neighboring States,
Tribes, or local units of government. Accordingly, EPA will encourage early communication and
cooperation among Tribes, States and local governments. This is not intended to lend Federal
support to any one party to the jeopardy of the interests of the other. Rather, it recognizes that in
the field of environmental regulation, problems are often shared and the principle of comity
between equals and neighbors often serves the best interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE
RELATED RESPONSIBILITIES ON INDIAN RESERVATIONS TO ENLIST THEIR
INTEREST AND SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME
ENVIRONMENTAL PROGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will seek and promote cooperation between Federal agencies to protect human
health and the environment on reservations. We will work with other agencies to clearly identify
and delineate the roles, responsibilities and relationships of our respective organizations and to
assist Tribes hi developing and managing environmental programs for reservation lands.
8. THE AGENCY WILL STRIVE TO ASSURE COMPLIANCE WITH
ENVIRONMENTAL STATUTES AND REGULATIONS ON INDIAN RESERVATIONS.
10
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In those cases where facilities owned or managed by Tribal Governments are not in
compliance with Federal environmental statutes, EPA will work cooperatively with Tribal
leadership to develop means to achieve compliance, providing technical support and consultation
as necessary to enable Tribal facilities to comply. Because of the distinct status of Indian Tribes
and the complex legal issues involved, direct EPA action through the judicial or administrative
process will be considered where the Agency determines, in its judgement, that: (1) a significant
threat to human health or the environment exists, (2) such action would reasonably be expected
to achieve effective results in a timely manner, and (3) the Federal Government cannot utilize
other alternatives to correct the problem hi a timely fashion.
In those cases where reservation facilities are clearly owned or managed by private parties
and there is no substantial Tribal interest or control involved, the Agency will endeavor to act hi
cooperation with the affected Tribal Government, but will otherwise respond to noncompliance
by private parties on Indian reservations as the Agency would to noncompliance by the private
sector elsewhere in the country. Where the Tribe has a substantial proprietary interest in, or
control over, the privately owned or managed facility, EPA will respond as described in the first
paragraph above.
9. THE AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS
PLANNING AND MANAGEMENT ACTIVITIES, INCLUDING ITS BUDGET, OPERATING
GUIDANCE, LEGISLATIVE INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM
AND ONGOING POLICY AND REGULATION DEVELOPMENT PROCESSES.
It is a central purpose of this effort to ensure that the principles of this Policy are
effectively institutionalized by incorporating them into the Agency's ongoing and long-term
planning and management processes. Agency managers will include specific programmatic
actions designed to resolve problems on Indian reservations in the Agency's existing fiscal year
and long-term planning and management processes.
William D. Ruckelshaus
11
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG24
Date Signed: November 16,1984
MEMORANDUM
SUBJECT: Policy Against "No Action" Assurances
FROM: Courtney M. Price
Assistant Administrator for Enforcement and Compliance Monitoring
TO: Assistant Administrators
Regional Administrators
General Counsel
Inspector General
This memorandum reaffirms EPA policy against giving definitive assurances (written or
oral) outside the context of a formal enforcement proceeding that EPA will not proceed with an
enforcement response for a specific individual violation of an environmental protection statute,
regulation, or other legal requirement.
"No Action" promises may erode the credibility of EPA's enforcement program by
creating real or perceived inequities in the Agency's treatment of the regulated community. This
credibility is vital as a continuing incentive for regulated parties to comply with environmental
protection requirements.
In addition, any commitment not to enforce a legal requirement against a particular
regulated party may severely hamper later enforcement efforts against that party, who may claim
good-faith reliance on that assurance, or against other parties who claim to be similarly situated.
This policy against definitive no action promises to parties outside the Agency applies in
all contests, including assurances requested:
• both prior to and after a violation has been committed;
• on the basis that a State or local government is responding to the violation;
• on the basis that revisions to the underlying legal requirement are being
considered;
• on the basis that the Agency has determined that the party is not liable or has a
valid defense;
• on the basis that the violation already has been corrected (or that a party has
promised that it will correct the violation); or
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WSG24
• on the basis that the violation is not of sufficient priority to merit Agency action.
The Agency particularly must avoid no action promises relating either to violations of
judicial orders, for which a court has independent enforcement authority, or to potential criminal
violations, for which prosecutorial discretion rests with the United States Attorney General.
As a general rule, exceptions to this policy are warranted only
• where expressly provided by applicable statute or regulation (e.g., certain upset or
bypass situations)
• in extremely unusual cases in which no action assurance is clearly necessary to
serve the public interest (e.g., to allow action to avoid extreme risks to public
health or safety, or to obtain important information for research purposes) and
which no other mechanism can address adequately.
Of course, any exceptions which EPA grants must be in areas in which EPA has discretion not to
act under applicable law.
This policy in no way is intended to constrain the way hi which EPA discusses and
coordinates enforcement plans with state or local enforcement authorities consistent with normal
working relationships. To the extent that a statement of EPA's enforcement intent is necessary to
help support or conclude and effective state enforcement effort, EPA can employ language such
as the following:
"EPA encourages State action to resolve violations of the Act and
supports the actions which (State) is taking to address the violations at issue. To the extent
that the State action does not satisfactorily resolve the violations, EPA may pursue its own
enforcement action."
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 25
Date Signed: January 25,1985
MEMORANDUM
SUBJECT: Direct Implementation Programs - 4 Programmatic Issues
FROM: Victor J. Kimm, Director
Office of Drinking Water (WH-550)
TO: Holders of Water Supply Guidance Compendium
Thank you for your comments on the draft water supply guidance sent to your offices for
review on October 25 (Trax memo - Request for Comments - Proposed Water Supply Guidance).
Because of your comments we made several changes to the proposed guidance particularly
relating to format.
Hope you had a good Holiday!
Attachment
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WSG25
DIRECT IMPLEMENTATION
PROGRAM POLICY & GUIDANCE
A. PROGRAM RESPONSIBILITIES OF THE PUBLIC WATER SYSTEM VERSUS THE
PRIMACY AGENT
POLICY:
IT IS THE RESPONSIBILITY OF THE PUBLIC WATER SYSTEM TO COMPLY
WITH THE REQUIREMENTS OF THE SAFE DRINKING WATER ACT AND THE
NATIONAL INTERIM PRIMARY DRINKING WATER REGULATIONS.
IT IS THE PRIMACY AGENT'S RESPONSIBILITY TO FOLLOW-UP ON
INCIDENTS OF PUBLIC WATER SYSTEM NON-COMPLIANCE AND PROVIDE
TIMELY ENFORCEMENT IF THE PUBLIC WATER SYSTEM FAILS TO MEET ITS
OBLIGATIONS.
UNDER CONDITIONS WHERE THE INABILITY OF THE WATER SYSTEM TO
PROPERLY MONITOR COULD COMPROMISE THE PUBLIC HEALTH IT MAY BE
APPROPRIATE FOR THE PRIMACY AGENT TO TEMPORARILY PERFORM
SOME OR ALL OF THE REQUIRED SAMPLE COLLECTION AND ANALYSIS.
Guidance:
The Safe Drinking Water Act clearly states it is the responsibility of the public water
system to provide "safe" drinking water and comply with the National Interim Primary Drinking
Water Regulations (NIPDWR). All EPA drinking water programs in non-primacy States should
be implemented in a way that recognizes that it is the public water system's responsibility to
comply with the SDWA and NIPDWR's.
It is the primacy agent's responsibility to follow-up on incidents of non-compliance and to
provide timely public notification and enforcement if the public water system fails to meet its
obligation. Each primacy agent should develop an enforcement strategy which outlines when
and what types of non-compliance trigger an enforcement action. The strategy should outline the
appropriate primacy agent response.
Some public water systems, because of their size, economic condition and other
constraints, are not able to adequately perform all the routine monitoring or any required special
monitoring that may be appropriate to protect the public health. This is particularly true when
contaminants other than the traditional contaminants (i.e. VOC's, SOC's) must be investigated by
sampling and analysis.
If the inability of the water system to properly and adequately monitor compromises the
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public health, it may be appropriate for the Federal or State primacy agent to perform some or all
of the required sample collection and analyses. This posture on the part of the primacy agent
should not be allowed to become the status quo, nor should it be applied to systems'capable of
performing the required monitoring. Rather, it should be viewed as a temporary solution. All
monitoring/analytical assistance given by the primacy agent should be linked with technical
assistance activities to move the public water systems toward self-sufficiency. It is important that
all activities of the primacy agent foster maximum self-sufficiency by public water systems.
If a public water system becomes recalcitrant in moving towards self-sufficiency, the
primacy agent should use enforcement, along with technical assistance as a tool to ensure the
public water system fully complies with the NIPDWR's and the self-monitoring goal of the
SDWA. The primacy agent should enforce against those public water systems whose progress
towards self-sufficiency has slowed - in spite of receiving technical assistance - and refuses to
fully comply with monitoring or reporting requirements.
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B. RESOURCE UTILIZATION
POLICY:
FEDERAL RESOURCES SHOULD BE ALLOCATED FIRST TO THOSE
ACTIVITIES SPECIFICALLY MANDATED BY THE SAFE DRINKING WATER
ACT AND SECONDARILY, FOR ACTIVITIES REQUIRED TO ACCOMPLISH THE
GOALS OF THE ACT.
ACTIONS NOT SPECIFICALLY MANDATED OR REQUIRED ARE APPROPRIATE
ACTIVITIES IF THEY SUPPORT THE PUBLIC HEALTH AND SYSTEM SELF-
SUFFICIENCY GOALS OF THE SAFE DRINKING WATER ACT.
Guidance:
Because resources are limited and thus prevent accomplishing all desired program
activities, Headquarters and each Region must cooperate to establish priorities. Each Region
should ensure that resources are dedicated first for activities specifically mandated by the SDWA
and secondly, those that support and enhance the primacy agent's implementation. The '
Implementation Regulations outline a number of activities primacy agents should undertake to
enhance the primacy agent's implementation.
SDWA Mandated Activities: Section 1413 of the SDWA outlines the requirements for
State primacy. These same requirements also apply when the primacy agent is an EPA
Region. In addition, Section 1442 encourages EPA technical assistance to encourage
State primacy assumption. These activities are:
Develop adequate enforcement and inspection procedures;
Keep records/make reports;
Issue variances and exemptions;
Develop and maintain emergency plans;
Give technical assistance to states to develop and establish Federally
approved drinking water programs.
Implementation Regulation Activities: In addition to SDWA mandated activities, Section
142.10 of the Implementation Regulations outlines additional activities primacy agents
should do to support the goals of the SDWA. They are:
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Maintain an inventory;
Develop a program of sanitary surveys with priority given to non-
complying systems;
Certify laboratories;
Develop and maintain a quality assurance program;
Conduct plan/design review; and
Enforce against non-complying systems.
Additional Activities: In addition to the above activities, it may be appropriate for the
primacy agent to undertake several other activities to support either the public health goal
of the Act or its mandated activities. These are: .
• Monitor unregulated contaminants;
• Train water supply operators and regulatory personnel;
• Develop effective communications with water supply operators and
regulatory agencies; and
• Manage data.
There is a base level of effort that must occur in each Region to ensure that the overall
program will be effective. In particular, Regions should ensure that the amount of resources
dedicated to base level activities are sufficient to encourage voluntary compliance by public
water systems. The ODW encourages regional flexibility to determine which activities to pursue
above the base. If the Program Office elects to direct resources away from mandatory and
required activities, it should demonstrate that the diversion was necessary to better protect the
public health.
The degree to which the above activities utilize available resources will depend upon
system compliance rates, State cooperation and the training/education needs of system operators.
The ODW will consider these factors, to the extent possible, when developing the resource
distribution models. At the national level, the degree to which these highest priority activities
utilize available resources will be considered when developing budget proposals.
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C. APPROPRIATE FOLLOW-UP TO MONITORING RESULTS
POLICY:
IT IS THE RESPONSIBILITY OF THE PRIMACY AGENT TO IMMEDIATELY
RESPOND TO ALL VIOLATIONS AND POTENTIAL VIOLATIONS WHICH HAVE
ACUTE HEALTH SIGNIFICANCE.
IF THE PRIMACY AGENT MONITORS OR PARTICIPATES IN A SURVEY FOR
UNREGULATED CONTAMINANTS, IT SHOULD PROVIDE APPROPRIATE
FOLLOW-UP TO PROTECT THE PUBLIC HEALTH.
Guidance:
One of the goals of the SDWA is the protection of public health through the provision of
safe drinking water. Primacy agents and individual public water systems measure progress
towards this goal through monitoring for drinking water contaminants and reporting compliance.
Primacy agents should respond to violations in a timely manner, particularly those violations
with acute health significance1' as well as any preliminary compliance monitoring results which
may have a "potential'l2/ acute health significance.
I/ For a list of violations which have acute health significance see "Public Water Systems
Compliance Policy," Office of Water, U.S. EPA, January 18,1984.
2/ Because some Regions determine compliance quarterly and PWS's monitor monthly, a
positive microbiological sample may not be determined as a violation for several months.
For purposes of this Policy, "potential" refers to any positive microbiological result.
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It is likewise important that the primacy agent respond to monitoring results from
unregulated contaminants which have a public health significance. At a minimum, the primacy
agent should be sure that the public water system is aware of the "potential" violation, knows the
appropriate steps it must take to protect the health of its consumers, and complies with follow-up
monitoring requirements.
While the absence of contaminants hi a sample does not mean the water is safe, the
presence of a contaminant in excess of the MCL conveys a possible risk of an adverse health
effect to consumers. This possible risk is sufficient justification for the primacy agent to require
follow-up monitoring and tracking. Follow-up monitoring and tracking is appropriate even for
those cases where the apparent presence of the contaminant cannot be reestablished or its cause
detected.
D. NON-COMMUNITY WATER SYSTEM LEVEL OF EFFORT
POLICY:
EACH REGION SHOULD DEDICATE A MINIMUM LEVEL OF EFFORT TO
REGULATE NON-COMMUNITY WATER SYSTEMS. ANY ACTIVITIES ABOVE
THE BASE LEVEL SHOULD BE PRIORITIZED.
Guidance
Non-community water systems may serve large numbers of people on a transient basis. If
deficiencies in the quality of water provided by NCWS's occur, the health of numerous people
may be adversely affected but remain undetected by the usual disease tracking mechanisms.
Consequently, it is important that the primacy agent address NCWS compliance-both
monitoring/reporting and MCL compliance. All NCWS's exceeding MCL's should be informed
in writing of the violations and remedial actions subsequently required.
Currently resources are allocated to Regions to maintain the NCWS inventory and to
follow-up instances of non-compliance. At a minimum, the resources allocated for the NCWS
program should be used to implement the non-community program. Regions should be prepared
to demonstrate that any deviation from this policy is necessary to effectively deal with higher
priority public health concerns.
Given the limited resources currently allocated to the non-community program and the
pressing needs associated with the community systems, significant coverage to non-communities
requires that NCWS's be ranked and addressed in priority order. In addition, to ensure the
greatest degree of voluntary compliance, all non-community systems should be notified
periodically of their statutory responsibilities to both provide safe drinking water and to
demonstrate this through periodic monitoring.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG26
Dated Signed: October 30,1985
MEMORANDUM
SUBJECT: Division of Penalties with State and Local Governments
FROM: Courtney M. Price (signed by Courtney M. Price)
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Regional Administrators
Associate Enforcement Counsels
Program Enforcement Division Directors
Regional Counsels
This memorandum provides guidance to Agency enforcement attorneys on the division of
civil penalties with state and local governments, when appropriate. In his "Policy Framework for
State/EPA Enforcement Agreements" of June 26,1984, Deputy Administrator Al Aim stated that
the EPA should arrange for penalties to accrue to States where permitted by law. This statement
generated a number of inquiries from States and from the Regions. Both the States and the
Regions were particularly interested in what factors EPA would consider in dividing penalties
with State and local governments. In addition, the issue was raised in two recent cases, U.S. vs.
Jones & Laughlin (N.D. Ohio) and U.S. vs. Georgia Pacific Corporation (M.D. La.). In each
case, a State or local governmental entity requested a significant portion of the involved penalty.
Consequently, OECM and DOJ jointly concluded that this policy was needed.
EPA generally encourages State and local participation in Federal environmental
enforcement actions. State and local entities may share in civil penalties that result from their
participation, to the extent that penalty division is permitted by Federal, State and local law, and
is appropriate under the circumstances of the individual case. Penalty division advances Federal
enforcement goals by:
1) Encouraging States to develop and maintain active enforcement programs; and
2) Enhancing Federal/State cooperation in environmental enforcement.
However, penalty division should be approached cautiously because of certain inherent
concerns, including:
1) Increased complexity in negotiations among the various parties, and the
accompanying potential for Federal/State disagreement over penalty division; and
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2) Compliance with the Miscellaneous Receipts Act. 31U.S.C. § 3302, which
requires that funds properly payable to the United States must be paid to the U.S.
Treasury. Thus any agreement on the division of penalties must be completed
prior to issuance of and incorporated into a consent decree.
As in any other court-ordered assessment of penalties under the statutes administered by
EPA, advance coordination and approval of penalty divisions with the Department of Justice is
required. Similarly, the Department of Justice will not agree to any penalty divisions without my
advance concurrence or that of my designee. In accordance with current Agency policy, advance
copies of all consent decrees, including those involving penalty divisions, should be forwarded to
the appropriate Associate Enforcement Counsel for review prior to commencement of
negotiations.
The following factors should be considered in deciding if penalty division is appropriate:
1) The State or local government must have an independent claim under Federal or
State law that supports its entitlement to civil penalties. If the entire basis of the
litigation is the Federal enforcement action, then the entire penalty would be due
to the Federal government.
2) The State or local government must have the authority to seek civil penalties. If a
State or local government is authorized to seek only limited civil penalties, it is
ineligible to share in penalties beyond its statutory limit.
3) The State or local government must have participated actively in prosecuting the
case. For example, the State or local government must have filed complaints and
pleadings, asserted claims for penalties and been actively involved in both
litigating the case and any negotiations that took place pursuant to the
enforcement action.
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4) For contempt actions, the State or local government must have participated in the
underlying action giving rise to the contempt action, been a signatory to the
underlying consent decree, participated in the contempt action by filing pleadings
asserting claims for penalties, and been actively involved in both litigating the
case and any negotiations connected with that proceeding.1
The penalties should be divided in a proposed consent decree based on the level of
participation and the penalty assessment authority of the State or locality. Penalty division may
be accomplished more readily if specific tasks are assigned to particular entities during the course
of the litigation. But in all events, the division should reflect a fair apportionment based on the
technical and legal contributions of the participants, within the limits of each participant's
statutory entitlement to penalties. Penalty division should not take place until the end of
settlement negotiation. The subject of penalty division is a matter for discussion among the
governmental plaintiffs. It is inappropriate for the defendant to participate in such discussions.
cc: F. Henry Habicht II, Assistant Attorney General
Land and Natural Resources Division
1 If the consent decree contains stipulated penalties and specifies how they are to be
divided, the government will abide by those terms.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG27
Date Signed: August 8,1986
MEMORANDUM
SUBJECT: Guidance for FY 1987 PWSS Enforcement Agreements
FROM: Michael B. Cook, Director (signed by Michael B. Cook)
Office of Drinking Water (WH-550)
TO: Regional Water Division Directors -..,....., -.„_,...
Regions I - X
I. PURPOSE
The FY 1987 Agency Operating Guidance clearly established a new emphasis on
enforcement for the Public Water Supply Supervision (PWSS) program. The emphasis on
enforcement has been further reinforced by several provisions of the 1986 amendments to the
Safe Drinking Water Act. This guidance supplements for the PWSS program the revised "Policy
Framework for Implementing State/EPA Enforcement Agreements" (to be issued 8/86), and
covers changes in the scope of the Agreements process, the definition of Significant
Noncompliance (SNC), timely and appropriate enforcement and the mandatory enforcement
provisions of the SDWA. It should be used in reviewing and updating, as necessary, the
State/EPA enforcement agreements.
Enforcement agreements should not be long or cumbersome documents, and they are not
expected to repeat the text of national guidance which can be incorporated by reference. The use
of existing mechanisms (documents or agreements) is encouraged as long as they achieve the
objective of setting clearly out the State's commitments in the enforcement area.
II. BACKGROUND
In FY 1986, the PWSS program negotiated State/EPA agreements which established
oversight criteria including requirements for timely and appropriate enforcement actions and
identification and tracking of Significant Noncompliers (synonymous with persistent violators
for FY 1986).
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Over the past year we have reviewed our definition of SNC and reevaluated our concept
of timely and appropriate enforcement action. To accomplish this, we formed a workgroup
composed of Headquarters, Regional, and State representatives. Two workgroup meetings, and
an additional two open workshops were conducted across the country over the past six months.
The guidance presented takes into account the input provided through that process.
In addition to this guidance, the Regions and States should ensure they are familiar with
the following documents: FY 1987 SPMS and OWAS Targets for the PWSS Program (7/10/86);
PWSS Reporting Guidance (to be issued); Revised Policy Framework for State/EPA
Enforcement Agreements and Federal Facility Compliance Strategy (Both to be issued 8/85).
III. GUIDANCE
A. Agreements Process and Scope
The agreements process established and implemented for FY 1986 will remain largely
unchanged for FY 1987. Changes to the Policy Framework relate to the State Attorney General
involvement (or other appropriate government legal staff) oversight of State civil penalties, and
Federal facilities compliance.
The State Agency is responsible for ensuring that the State Attorney General or other
appropriate legal staff is properly notified and consulted about planned Federal enforcement
actions and/or enforcement initiatives, on an ongoing basis.
The focus of oversight of State penalties will be on improving the State's use of penalties
in the overall context of the State's compliance and enforcement program.
Federal facilities may require greater or different needs for State and Regional
coordination. Advance notification and consultation protocols in the State/EPA enforcement
agreements should incorporate any special arrangements necessary for Federal facilities. These
protocols should address how the State will be involved in the review of Federal Agency A-106
budget submissions and plans for joint annual reviews of compliance problems at Federal
facilities.
*B. Significant Noncompliance
The definition of Significant Noncompliance (SNC) is changed for FY 1987. There was
general agreement among the States, Regions, and Headquarters that the FY 1986 definition of
SNC (persistent violators) did not focus on the most significant violations, particularly in the area
of failure to monitor. The SNC definition has been expanded to incorporate violations of the
chemical and radiological MCLs and monitoring requirements. Also, in an attempt to address
the seriousness of a water system which fails to adhere to the conditions of a compliance
schedule, we will now consider a system which does so to be classed as a SNC. Although it will
be difficult to identify and track some of these new criteria, we believe that it is better to include
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them in the definition now, and begin tracking them. In doing so now, States will know the
direction that EPA's oversight is taking. The definition of SNC is attached.
For FY 1987 we will categorize SNCs into three groups, those which are classified as
SNCs because of violations of:
a) Microbiological MCL or monitoring/reporting (M/R) requirements, turbidity
MCL or M/R requirements, or TTHM M/R requirements;
b) Chemical or radiological MCL requirements, or chemical (other than TTHM) or
radiological M/R requirements; and
c) Compliance agreement/compliance schedule.
C. Timely and Appropriate Enforcement Response
1. Timely and Appropriate Milestones
The timelines for escalating enforcement actions established in the July 3, 1985
memorandum from Vic Kimm, entitled Guidance for the Development of FY 1986 PWSS State
Program Plans and Enforcement Agreements, are superseded by the system and definitions
described below.
The timely and appropriate milestones for FY 1987 will apply to SNCs. However, States
should also respond to other non-SNC violations. States should develop a system to take
enforcement actions against violators on a random basis to ensure that a strong enforcement
presence is created. Regions should discuss the State's plans to develop and implement such a
program where one does not already exist.
* NOTE: The definition of SNC was changed for F Y90; See the memorandum dated May
22,1990.
* * If compliance is not achieved for SNCs, an appropriate formal enforcement response will
be taken, or a negotiated agreement signed (according to the definitions below) within six
months of the State's discovery of a system in Significant Noncompliance for violation of a
microbiology or turbidity MCL or M/R, a TTHM M/R requirement, or a compliance
agreement/schedule.
* * For those systems which are SNC because of a chemical or radiological MCL, or a
chemical (other than TTHM) or radiological M/R requirement, an appropriate formal
enforcement action will be taken or a negotiated agreement signed within 12 months after the
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State's discovery* of the SNC.
2. Definition of "Appropriate" Enforcement Response
The following enforcement responses will be considered appropriate actions regardless of
what type of violation caused the system to become a SNC:
a) Issuance of a formal administrative order or compliance order;
b) Referral of a civil judicial case to the State Attorney General;
c) Filing of a criminal judicial case in an appropriate State court; and
d) Finalization of a written bilateral, compliance agreement signed by both
parties which includes a compliance schedule.
According to the Agency's Policy Framework, a formal action is defined as one which
requires specific actions necessary for the violator to return to compliance, is based on a specific
violation, and is independently enforceable without having to prove the original violation. The
PWSS's program is reclassifying those actions which were previously called "formal" to more
closely follow the Agency definitions. Formal enforcement actions will now be administrative
orders/compliance orders or civil or criminal case referrals or filings.
* State's discovery — as a result of the workgroup and workshop meetings, it appears that
the vast majority of States can compile and process their violation data, and will,
therefore, be aware of a system's SNC status within two months after the end of each
compliance period.
** The timeliness criteria changed to six months for all SNCs. See the memorandum date
April 20,1990.
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In addition to the formal actions, the PWSS program is including a bilateral compliance
agreement as an appropriate response, even though it is not independently enforceable. The
rationale for allowing the use of bilateral compliance agreements schedule is first, that the State
programs have had success in using this mechanism to bring some types of violators back into
compliance. Second, bilateral compliance agreements require fewer State resources than taking
formal enforcement actions. Use of bilateral compliance agreements will, therefore, enable a
larger number of violators to be handled than would reliance on formal enforcement actions
alone, especially given the program's limited experience with using formal enforcement. Third,
the appropriate use of penalties has not yet been defined for the program. Once it has been,
formal enforcement mechanisms will be required where it is determined that a penalty is
appropriate.
The Regions will closely monitor the use of bilateral compliance agreements which are
not independently enforceable to ensure the conditions for their use are met. Regions may take
additional direct Federal enforcement action if the conditions are not meet and/or if the bilateral
compliance agreement is not effective in returning the violator to compliance.
To ensure that these bilateral compliance agreements are used effectively, they should
meet the following conditions:
• Agreement is a bilateral, negotiated, written document signed by both parties;
• Agreement contains detailed commitments by the violator;
• Agreement contains specific interim milestones which the system is expected to
meet and specifies what must be accomplished by those dates;
• Violator has shown good faith in negotiations and has made a good faith effort to
comply hi the past;
• Violator must not have had a long previous history of noncompliance; and
• Compliance agreement is not an extension of an existing schedule which was
violated.
It is critical in all bilateral compliance agreements which include a schedule, but
particularly in those which cover a long period, to establish key interim milestones. Tracking of
these interim milestones will alert the State or Region to any problems or delays experienced by
the system and allow follow-up actions to be taken as necessary without waiting until the end of
the compliance schedule.
Generally, these milestones should include specific dates for starting construction or
installation of equipment, completing construction or installation of equipment, and when
physical compliance will be achieved.
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Where appropriate, the bilateral compliance agreements should include any necessary
commitment by the violator to ensure an alternative and adequate drinking water supply. This
might include commitments to issue boil water notices, supply bottled water, etc. -
Where these bilateral compliance agreements are used, it is expected that the State will
continue to monitor the system's compliance with the schedule and that each quarter the State
will ensure that the system is complying with its schedule. It is expected that the State will
promptly escalate to a formal enforcement action if the system violates the schedule and it
appears that the system is not making every reasonable attempt to follow the schedule. Likewise,
the Region should ensure that the system is complying with the schedule through quarterly
discussions with the State. If compliance is not being achieved through this process, and after
consultation with the State, the Region may take a formal enforcement action.
3. Tracking Timely and Appropriate Action
Each quarter the Federal Reporting Data System (FRDS) will identify those systems
which are classed as SNCs. This list will then be distributed to the Regions who will forward
them to the States. States are to review the lists each quarter, and inform EPA whether the
system has since returned to compliance or, if not, what type of appropriate enforcement action
has been taken.
The names of any SNCs which have not returned to compliance or against which the
State has not taken an appropriate action will be placed on an exceptions report. It is the goal
that the States will take an appropriate enforcement action for each SNC less than six months
after the State discovers the SNC for SNCs of microbiology, turbidity, and TTHM violations
defined on page three, or violation of a compliance schedule, or less than 12 months after the
State discovers an SNC of a chemical or radiological violation (see page 3).
While it is acknowledged that there may be legitimate reasons why the State has not
taken an appropriate action, the 1986 amendments to the SDWA require Federal action if the
.State has not taken an appropriate action within 30 days of EPA's notification. Thus, the
exceptions report will provide a forum for State/Regional discussions during the 30-day period
(after EPA receives the exceptions report) in which to focus attention on those systems which
require extra effort to be returned to compliance, and to assess whether EPA enforcement action
is necessary.
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The State and Region should discuss the status of the systems on the exceptions report in
the beginning of each quarter. During these discussions, either the State should show that an
appropriate enforcement response has been or will be taken within the 30 day period, or EPA
should commit to taking a direct Federal action.
4. Failure to Take Timely and Appropriate Action
In general, EPA will defer to State actions which are timely and appropriate. Where
States are unwilling or unable to take timely and appropriate enforcement actions, EPA will take
a direct enforcement action according to the provisions of the amendments to the SDWA. There
are also other circumstances under which EPA may take action, (namely if the State requests
Federal action), if there are national legal or program precedents involved, or if the case involves
violations of a Federal enforcement action. In any case, direct Federal action should only occur
after notification and consultation with the State.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG28
Date Signed: August 25,1986
MEMORANDUM
SUBJECT: Revised Policy Framework for State/EPA Enforcement Agreements
FROM: A. James Barnes (signed by A. James Barnes)
Deputy Administrator
TO: Assistant Administrators
Associate Administrator for Regional Operations
Regional Administrators
Regional Counsels
Regional Division Directors
Directors, Program Compliance Offices
Regional Enforcement Contacts
I am pleased to transmit to you a copy of the Agency's revised Policy Framework for
State/EPA Enforcement agreements. The Policy Framework, originally developed in 1984, along
with program-specific implementing guidance, will continue to serve as the blueprint for our
State/EPA enforcement relationship. The revised Policy Framework integrates new guidance
developed since its original issuance. It reinforces the Guidance for the FY 1987 Enforcement
Agreements Process which I transmitted to you on April 15,1986 and should serve as your guide
for negotiations and implementation of the Enforcement Agreements.
Although the intent of the revisions was to incorporate new policy, the process gave the
Agency, with the assistance of the Steering Committee on the State/Federal Enforcement
Relationship, an opportunity to reassess with the States our original approach. This process has
clearly reaffirmed that the basic approaches we put in place in 1984 for an effective working
partnership are sound and that all parties continue to be committed to its effective
implementation.
The revisions incorporate into the Policy Framework addenda developed over the past
two years in the areas of oversight of State civil penalties, involvement of the State Attorneys
General in the Enforcement Agreements process, and implementation of nationally managed or
coordinated cases. The revisions also reflect, among other things, some of the points that have
been emphasized in my annual guidance on the Enforcement Agreements process, the Evaluation
Report on Implementation of the Agreements, and the Agency's Criminal Enforcement and
Federal Facilities Compliance draft strategies.
I am firmly committed to full and effective implementation of the Policy Framework and
am relying on your continued personal attention to this important effort. I plan to review the
Region's performance in implementing the revised Policy Framework and the program-specific
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guidance, particularly the "timely and appropriate" enforcement response criteria, as part of my
semi-annual regional visits.
I encourage you to share the revised Policy Framework with your State counterparts.
Attachments
cc: Steering Committee on the State/Federal Enforcement Relationship
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POLICY FRAMEWORK FOR STATE/EPA
ENFORCEMENT AGREEMENTS
August 1986
(originally issued June 1984)
OFFICE OF ENFORCEMENT
AND COMPLIANCE MONITORING
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POLICY FRAMEWORK FOR STATE/EPA ENFORCEMENT AGREEMENTS'
Achieving and maintaining a high level of compliance with environmental laws and
regulations is one of the most important goals of Federal and State environmental agencies, and
is an essential prerequisite to realizing the benefits of our regulatory programs. While States and
local governments have primary responsibility for compliance and enforcement actions within
delegated or approved States, EPA retains responsibility for ensuring fair and effective
enforcement of Federal requirements and a credible national deterrence to noncompliance. An
effective State/Federal partnership is critical to accomplishing these goals, particularly given
limited State and Federal resources. The task is difficult and one of the most sensitive in the
EPA/State relationship, often compounded by differences in perspectives on what is needed to
achieve compliance.
To establish an effective partnership in this area, and to implement the State/Federal
enforcement relationship envisioned in the Agency Oversight and Delegation policies, EPA
called for State-specific enforcement agreements to be in place beginning FY 1985 which will
ensure there are: (1) clear oversight criteria, specified in advance, for EPA to assess good State -
- or Regional -compliance and enforcement program performance; (2) clear criteria for direct
Federal enforcement in delegated States with procedures for advance consultation and
notification; and (3) adequate State reporting to ensure effective oversight.
This document is the Agency's policy framework for implementing an effective
State/Federal enforcement relationship through national program guidance and Regional/State
agreements. It is the product of a Steering Committee effort involving all major national EPA
compliance and enforcement program directors, State Associations, State officials from each of
the media programs, and the National Governors' Association. EPA anticipates that the
relationship, and the use of the agreements first established in FY 1985, will evolve and improve
over time. They will be reviewed and updated where necessary, on an annual basis. The Policy
Framework will be subject to periodic review and refinement. Originally issued on June 26,
1984, the Policy Framework has been updated to reflect additional guidance developed since that
time.
1 The term Enforcement Agreement is used throughout to describe the document(s), be it
an existing grant, SEA, MOU, or separate Enforcement Agreement, which contains the
provisions outlined in the Policy Framework and related media-specific guidance. (See p.
4 for description of form of agreement.)
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Policy Framework Overview
The Policy Framework applies both to Headquarters program offices in their development
of national guidance and to Regions in tailoring program guidance to State-specific needs and
agreements. Although enforcement agreements are not required or States which do not have
delegated or approved programs, Regions are encouraged to apply to these States certain policies
and provisions where relevant, particularly advance notification and consultation protocols. The
Policy Framework is divided into six sections, to address the following key areas:
A. State/Federal Enforcement "Agreements": Formr Scope and
Substance (pages 4-7)
This section sets forth for Regions and States developing enforcement agreements the
areas that should be discussed, priorities, and the degree of flexibility that Regions have
in tailoring national guidance to State-specific circumstances, including the form and
scope of agreements.
B. Oversight criteria and Measures: Defining Good Performance (pages 8-17)
This section is primarily addressed to EPA's national
measures for defining good performance generally aj
measures lor aenrnng gooa penormance generally appiicaoie to any compliance ana
enforcement program whether administered by EPA or a State. It forms the basis for
EPA oversight of State programs. A key new area that should receive careful review i
the definition of what constitutes timely and appropriate enforcement response, Sectio
O /~1M+/»in.< 44 f Mn»AO 11 17
EPA oversight of State programs. A key new area that should receive careful review is
the definition of what constitutes timely and appropriate enforcement response, Section
B, Criterion #5, pages 11-13.
C. Oversight Procedures and Protocols (pages 18-20)
This section sets forth principles for carrying out EPA's oversight responsibilities,
including approach, process and follow-up.
D. Criteria for Direct Federal Enforcement in Delegated States
(pages 21-25)
This section sets forth the factors EPA will consider before taking direct enforcement
action in a delegated State and what States may reasonably expect of EPA in this regard
including the types of cases and consideration of whether a State is taking timely and
appropriate enforcement action. It also establishes principles for how EPA should take
enforcement action so that we can be most supportive of strengthening State programs.
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E. Advance Notification and Consultation (pages 26-30)
This section sets forth EPA's policy of "no surprises" and what arrangements must be
made with each State to ensure the policy is effectively carried out by addressing planned
inspections, enforcement actions, press releases, dispute resolution and assurances that
publicly reported performance data is accurate.
F. State Reporting (pages 31-35)
This section sets forth seven key measures EPA will use, at a minimum, to manage and
oversee performance by Regions and States. It summarizes State and regional reporting
requirements for: (1) compliance rates; (2) progress in reducing significant non-
compliance; (3) inspection activities; (4) formal administrative enforcement actions; and
(5) judicial actions, at least on a quarterly basis. It also discusses required commitments
for inspections and for addressing significant non-compliance.
In addition, it sets forth State and regional requirements for recordkeeping and evaluation
of key milestones to assess the timeliness of their enforcement response and penalties
imposed through those actions.
Appendices
Appendix A: Annual priorities and implementing guidance provides a list of the annual
priorities for implementing the enforcement agreements and a summary index of what
national program guidance has been or will be issued by programs to address the areas
covered by the Policy Framework for State/EPA Enforcement Agreements.
Appendix B: Addendum to the Policy Framework on "implementing Nationally
Managed or Coordinated Enforcement Actions," issued January 4,1985.
Appendix C: Guidance on "Division of Penalties with State and Local Governments,"
issued October 30,1985.
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A. STATE/FEDERAL ENFORCEMENT AGREEMENTS: FORM, SCOPE, AND
SUBSTANCE
This section sets forth the form, scope and substance of the State/Federal Enforcement
Agreements as well as the degree of flexibility Regions have in tailoring-national policy to
individual States.
1. What Form Should the Agreements Take?
We do not anticipate the need for a new vehicle or document for the State/Federal
enforcement agreements. Wherever possible, State/Federal agreements should be set forth in one
or more of a number of existing formats: grant agreements, State/EPA Agreements, Memoranda
of Agreement or Understanding or a statement of Regional Office operating policy. Where there
are new documents the appropriate linkage should be made to grants and SEA's as applicable.
To the extent the areas covered by this Policy Framework translate into specific output
commitments and formal reporting requirements, they may belong hi the grant agreements as
specified in national program grant guidance. Regions should discuss with the States at an early
stage in the planning process their views on both the form and substance of the agreements.
Once the basic agreements are in place, Regions should consider most aspects of the written
agreements as multi-year, minimizing the need to renegotiate the agreements each year. Regions
should conduct an annual review with the States to identify needed revisions and additions to the
agreements to address identified problems or reflect further national guidance.
2. What is the Scope of the Agreements?
This guidance and the State/EPA agreements cover all aspects of EPA's civil compliance
and enforcement programs, including those activities involving Federal facilities. The criminal
enforcement program is not included and will be addressed elsewhere.
Discussions between EPA Regions and States should cover the minimum areas listed
below:
• Oversight Criteria and Measures: Good Performance Defined — See Section B.
• Oversight Procedures and Protocols — See Section C.
• Criteria for Direct EPA Enforcement — Section D.
• Procedures for Advance Notification and Consultation — See Section E.
• Reporting Requirements — See Section F.
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However, Regions and States are not expected to duplicate national Program guidance in
their agreements — we are not looking for lengthy documents. Written agreements resulting from
these discussions could cover topics which are not clearly specified elsewhere. If not otherwise
specified, national policy will apply and should be so stated in the State agreements. Although
not required for non-delegated or unapproved programs, Regions are encouraged to apply certain
policies and provisions where relevant, particularly advance notification and consultation
protocols.
This Policy Framework and the resulting State/EPA Enforcement Agreements are
intended to enhance enforcement of State and Federal environmental laws. Each agreement
should be careful to note that nothing hi them or this Policy Framework constitutes or creates a
valid defense to regulated parties hi violation of environmental statutes, regulations or permits.
3. Parties to the Agreements and Participants in the Process.
It is important to involve the appropriate State and regional personnel early in the
agreements process. In the Regions, this means involving the operating level program staff and
the Regional Counsel staff along with top management; and hi the States it means the
participation of all the organizational units responsible for making enforcement work, e.g., State
program staff, those responsible for oversight of field operations, staff attorneys, and the State
Attorneys General (AG). The State agency should have the lead in establishing effective
relationships with the State AG or State legal staff, as appropriate. The Regions should ensure
that there is adequate communication and coordination with these other participants in the
enforcement process. States are strongly encouraged to commit advance notification and
consultation procedures/protocols between the State agency and the Stage AG (or State legal
staff, as appropriate) to writing. The Region should seek to incorporate these written protocols
into the State/EPA Enforcement Agreements (See discussion on pages 17 and 26-27).
4. What Flexibility do Regions Have?
Regions must be allowed substantial flexibility to tailor agreements to each State, as the
agreements process is intended to be based upon mutual understandings and expectations. This
flexibility should be exercised within the framework of national program policy and the Agency's
broad objectives. Specifically,
a. Oversight Criteria:
Oversight criteria would generally be provided in national program guidance but
Regions should tailor then: general oversight to address environmental and other
priorities hi the Region or State, and other specific areas of concern that are
unique to an individual State, including any issues raised by the scope of State
enforcement authorities, unique technical problems and available expertise, and
areas targeted for improvement.
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In addition, Regions and States should adapt national timely and appropriate enforcement
response criteria to State-specific circumstances to fit State authorities and procedures as follows:
(i) Timeliness: The national program guidance on key milestones and
timeframes should be applied to all States with adjustments to
accommodate each State's laws and legal procedures. Such adjustment
can be important particularly where the proposed enforcement action
cannot possibly take place within the proposed timeframes or where a
State chooses to address problems more expeditiously than the Federal
guidelines. The trigger points should be realistic expectations, but within
modest variance from the national goals. Other adjustments should not be
made solely because a State program consistently takes longer to process
these actions due to constraints other than procedural requirements, e.g.,
resources. However, if this is the case the timeframes should serve as a
basis for reviewing impediments with the State to identify how problems
can be overcome and to explore ways over time for the State program to
perform more efficiently. (See discussion in Section Br p. 131
The timeframes are not intended to be rigid deadlines for action,
but rather are: (1) general targets to strive for hi good program
performance; (2) trigger points that EPA and States should use to review
progress in individual cases; and (3) presumptions that, if exceeded, EPA
may take direct enforcement action after consideration of all pertinent
factors and consultation with the State. It is not the Agency's intention to
assume the major enforcement role in a delegated State as a result of these
timeframes. The trigger points should be realistic expectations, but within
modest variance from the national goals. It must also be realized that in
some programs we need experience with the timeframes to assess how
reasonable and workable they really are and further, that judgments on
what is a reasonable timetable for action must ultimately be case specific.
For example, complex compliance problems may require longer-term
studies to define or achieve an appropriate remedy.
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(ii) Appropriate Enforcement Response:
(a) Choice of response: National medium-specific program guidance
applicable to State programs on appropriate enforcement response
should be followed (See Appendix A). There is usually sufficient
flexibility within such guidance to allow the exercise of discretion
on how best to apply the policies to individual cases. The Agency
is making every effort to set forth a consistent national policy on
enforcement response for each program. It is therefore essential
that in setting forth clear expectations with States this guidance not
be altered.
(b) Definitions of formal enforcement actions: Regions should reach
agreement with States as to how certain State enforcement actions
will be reported to and interpreted by EPA. This should be based
upon the essential characteristics and impact of State enforcement
actions, and not merely upon what the actions are called. National
program guidance setting forth consistent criteria for this purpose
should be followed, pursuant to the principles listed in Section B,
pages 11-12.
(c) Civil Penalties and Other Sanctions: Program guidance must also
be followed on where a penalty is appropriate. Regions have the
flexibility to consider other types of State sanctions that can be
used as effectively as cash penalties to create deterrence, and
determine how and when it might be appropriate to use these
sanctions consistent with national guidance. Regions and States
should reach understanding on documentation to evaluate the
Sale's penalty rationale. Maximum flexibility in types of
documentation will be allowed to the State.
5. Procedure and Protocols on Notification and Consultation:
Regions and States should have maximum flexibility to fashion arrangements that are
most conducive to a constructive relationship, following the broad principles outlined in this
document.
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6. State-Specific Priorities:
In addition, while of necessity EPA must emphasize commitments by States top address
significant noncompliance and major sources of concern, Regions should be sensitive to the
broad concerns of State Programs including minor sources and the need to be responsive to
citizen complaints. Regions should discuss the State's perspective on both its own and national
priorities, and take into account State priorities to the extent possible.
7. What Does it Mean to Reach Agreement?
To the extent possible, these agreements should reflect mutual understandings and
expectations for the conduct of Federal and State enforcement programs. At a minimum, EPA
Regions must: (1) be clear and ensure there are "no surprises"; (2) make arrangements with the
States so that actions taken are constructive and supportive; and (3) tailor the application of the
national program guidance to the States' programs and authorities. Where mutual agreement
cannot be achieved, clear unilateral statements of policy will have to suffice, with commitments
to try to seek further agreements over time. Areas where agreements have not been reached
should be clearly identified for senior Agency management attention.
B. OVERSIGHT CRITERIA AND MEASURES: DEFINING GOOD PERFORMANCE
The first step to achieving strong and effective national compliance and enforcement
programs is a clear definition of what constitutes good performance. Because each of EPA's
programs embodies unique requirements and approaches, good performance must be defined on
a program-specific basis. Adjustments also made in applying criteria and measures to the States
and Regions, based upon their environmental problems and authorities. Nevertheless, there are
several basic elements which will generally be applicable to a good compliance and enforcement
program hi any of our medium-specific programs. The following outlines the criteria and
measures that form the common framework for defining a quality program. The framework is to
serve as a guide to the national programs as they develop, in cooperation with Regions and
States, the criteria they will use to assess their performance in implementing national compliance
and enforcement programs. .
The framework is not intended to be adopted word-for-word by the programs, nor is there
any format implied by this list. What is important are the concepts. This section addresses only
the elements of a quality program. Issues such as how oversight should be conducted are
addressed in Section C. Each national program may choose to focus on certain elements of
performances in a given year.
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These criteria and measures are intended to apply to the implementing agency, that is, to
an approved or delegated State or to an EPA Region in the event a program is not "delegated."
Our philosophy is that EPA should be held to the same standards as we would apply to the States
if they were implementing the program. Portions may also apply to those non-approved or non-
delegated States which are administering portions of the programs under cooperative agreements.
CRITERION #1 Clear Identification of and Priorities for the Regulated Community
A quality compliance and enforcement program is based upon an inventory of regulated
sources which is complete, accurate and current. The data should in turn be accessible,
preferably in automated data systems which are accurate, and up-to-date. The scope of coverage
for the inventory should be appropriately defined by each program as it is probably not feasible to
identify every person or facility subject to environmental laws and regulations, especially when
they are numerous small sources. Those priorities should be clearly established in national
program guidance and tailored to State-specific circumstances as appropriate.
The inventory of sources or other relevant information on sources should be utilized as a
basis for a priority-setting system established by the administering agency. These priorities
should reflect and balance both national priorities and State-specific priorities. A quality
program uses those priorities as a basis for program management. National priorities are
generally set forth in EPA's Operating Year Guidance and program-specific compliance and
enforcement strategies. State-specific priorities should address not only efforts to achieve broad
based compliance but also should assess the expected environmental impact of targeting
enforcement and compliance monitoring to specific geographic areas or against certain source
types. Ambient monitoring systems can provide an important point of departure for priority-
setting.
CRITERION #2 Clear and Enforceable Requirements
Requirements established through permits, administrative orders and consent decrees
should clearly define what a specific source must do by a date certain, in enforceable terms. It is
not EPA's intention in this policy framework to suggest that EPA conduct a top down review of a
State or Regional program's entire regulatory program. However, areas where provisions cannot
be enforced due to lack of clarity or enforceable conditions should be identified and corrected.
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CRITERION #3 Accurate and Reliable Compliance Monitoring
There are four objectives of compliance monitoring:
Reviewing source compliance status to identify potential violations;
Helping to establish an enforcement presence;
- Collecting evidence necessary to support enforcement actions regarding identified
violations; and
Developing an understanding of compliance patterns of the regulated community
to aid in targeting activity, establishing compliance/enforcement priorities,
evaluating strategies, and communicating information to the public.
The two factors in assessing the success of a compliance monitoring program are
coverage and quality.
Coverage: Each program's strategy should reflect a balance between coverage: (1) for breadth,
to substantiate the reliability of compliance statistics and establish an enforcement presence; and
(2) for targeting those sources most likely to be out of compliance of those violations presenting
the most serious environmental or public health risk.
Inspections: Each administering agency should have a written and reviewable inspection
strategy, reviewed and updated annually, as appropriate: in some programs a multi-year
strategy may be preferable. The strategy should demonstrate the minimum coverage for
reliable data gathering and compliance assessment set forth hi national program guidance
and meet legal requirements for a "neutral inspection scheme." The strategy should also
address how the inspections will most effectively reach priority concerns and potential
noncompliers including the use of self-reported data, citizen complaints and historic
compliance patterns. The strategy will be assessed on whether it embodies the
appropriate mix of categories of inspections, frequency and level of detail. Inspections
should then be carried out hi a manner consistent with the inspection strategy.
Source Self-Monitoring and Reporting: The administering agency should ensure that
minimum national requirements for source self-monitoring and reporting are imposed and
complied with, either through regulation or permit condition, pursuant to national
guidance as appropriate.
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Quality: Each program should define minimum standards for quality assurance of data and data
systems, and timely and complete documentation of results. At a minimum, each program
should have a quality assurance program to insure the integrity of the compliance monitoring
program. This quality assurance program should address essential lab analysis and chain of
custody issues as appropriate.
Inspections: Inspectors should be able to accurately document evidence needed to
determine the nature and extent of violations, particularly the presences of significant
violations. Document of inspection findings should be timely, complete and able to
support subsequent enforcement responses, as appropriate to the purpose of the
inspection. Federal oversight inspections should corroborate findings. Oversight
inspections are a principal means of evaluating both the quality of an inspection program
and inspector training.
Source Self-Monitoring: The administering agency should have a strategy for and
implement quality assurance procedures, with sufficient audits and follow-up action to
ensure the integrity of self-reported data.
CRITERION #4 High or Improving Rates of Continuing Compliance
The long-term goal of all of our compliance and enforcement programs is to achieve high
rates of continuing compliance across the broad spectrum of the regulated community. Until that
goal is achieved, compliance rates can fluctuate for several reasons. In assessing how well an
administering agency is meeting the goal of high or improving rates of compliance, other factors
must be assessed in addition to the overall compliance rate. Improved inspections or inspection
targeting often can result in a temporary decrease in rates of compliance until newly found
violations are corrected and the regulated community responds to the more vigorous attention to
specific compliance problems. In these instances, a decrease in the rate of compliance would be
a sign of a healthy compliance and enforcement program. At a minimum, programs should
design mechanisms to track the progress of all sources out of compliance through major
milestones up to achieving final physical (full) compliance with applicable regulations and
standards.
Program quality must also be assessed in terms of how well the program is returning
significant noncompliers to compliance. The use of lists of significant violators and specific
commitments to track and resolve significant noncompliance should be part of the planning
process of the administering agency, and between States and Regions. The lists should be
developed in consultation with the States and continually updated each fiscal year and sources on
it tracked through to final physical compliance.
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CRITERION #5 Timelv and Appropriate Enforcement Response
Quality enforcement programs ensure that there is timely and appropriate enforcement
response to violations. Expectations for what constitutes timely and appropriate action should be
based upon national program guidance, tailored to the procedures and authorities in a given State
and assessed in regard to particular circumstances surrounding each instance of violation.
National programs must establish benchmarks or milestones for what constitutes timely and
appropriate enforcement action, forcing progress in enforcement cases toward ultimate resolution
and full physical compliance. This concept is a key new feature to our compliance and
enforcement program implementation.
In designing oversight criteria for timely enforcement response, each program will
attempt to capture the following concepts:
1. A set number of days from "detection" of a violation to an initial response. Each
program should clearly define when the clock starts, that is, how and when a
violation is "detected."
2. Over a specified period of time, a full range of enforcement tools may be used to
try to achieve compliance, including notices of violation, warning letters, phone
calls, site visits, etc. The adequacy of these responses will be assessed based upon
whether they result in expeditious compliance.
3. A prescribed number of days from initial action within which a determination
should generally be made, that either compliance has been achieved or an
administrative enforcement action has been taken (or a judicial referral has been
initiated, as appropriate) or that, at a minimum:
• Explicitly requires recipient to take some corrective/remedial action, or
refrain from certain behavior, to achieve or maintain compliance;
• Explicitly is based on the issuing Agency's determination that a violation
has occurred;
• Requires specific corrective action, or specifies a desired result that may
be accomplished however the recipient chooses, and specifies a timetable
for completion;
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• May impose requirements in addition to ones relating directly to correction
(e.g., specific monitoring, planning or reporting requirements); and
• Contains requirements that are independently enforceable without having
to prove original violation and subjects the person to adverse legal
consequences for noncompliance.
4. A specific point at which a determination is made either that final physical
compliance has been achieved, that the source is hi compliance with a milestone
in a prior order, or that escalation to a judicial enforcement action has been taken
if such actions have not already been initiated.
In developing program-specific guidance, this milestone may be treated more as a
concept than as a fixed timetable, taking into account the fact that the
administrative hearing process and the State Attorney General's actions are not
within the direct control of the administering agency.2 What is important is the
embodiment of the concept of timely follow-up and escalation in requirements for
tracking and management.
5. Final physical compliance date is firmly established and required of the facility.
Although it is not possible for programs to establish any national timeframes, the
concept of final physical compliance by a date certain should be embodied hi EPA
and State enforcement actions.
6. Expeditious physical compliance is required. It may not be possible for programs
to define "expeditious" in terms of set time periods, but some concept of
"expeditious" (i.e., that the schedule will result in a return to full physical
compliance as quickly as can reasonably be expected) should be embodied in each
program's guidance.
See p. 17,26-27, regarding the State Agency's responsibilities for coordinating with the
State Attorney General or other legal staffs.
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Timeframes established by the national programs for each of these minimum milestones
are principally intended to serve as trigger points and not as absolute deadlines, unless
specifically defined as such. Whatever timeframes are established are intended to apply only to
Federal requirements as adopted by the States, and do not apply to State statutes and
requirements that go beyond those required by Federal law. The timeframes are key milestones
to be used to manage the program, to trigger review of progress in specific cases, and a
presumption of where EPA may take direct enforcement action after consideration of all
pertinent factors and consultation with the State.
Timeframes and their use hi management will evolve over time as they will have to
reflect different types of problems that may warrant different treatment. For example, programs
will have to take into account such factors as new types of violations, the difference between
operating and maintenance violations versus those that require installation of control equipment,
emergency situations which may fall outside the scope of the normal timeframes for action, etc.
Administering agencies are expected to address the full range of violations in their
enforcement responses considering the specific factors of the case and the need to maintain a
credible enforcement presence. However, the new management approach setting forth desired
timeframes for timely action could have resource implications beyond what is currently available
to or appropriate for the full range of sources and violations. Therefore, as we begin to employ
the concept of timely and appropriate enforcement response, at a minimum, the focus should be
on the greatest problems, i.e., the significant noncompliers. Over time, and with more
experience, this concept should be phased-in to cover a broader range of violations. This in no
way should constrain the programs from applying the concepts broadly.
The choices of appropriate response are to be defined within the constraints of national
program guidance and applied by the administering agency based upon consideration of what is
needed: (1) in general, to achieve expeditious correction of the violation, deterrence to future
noncompliance and fairness; and (2) hi individual circumstances, based upon the gravity of the
violation, the circumstances surrounding the violation, the source's prior record of compliance
and the economic benefits accrued from noncompliance. With three exceptions, the form of the
enforcement response is not important by itself, as long as it achieves the desired compliance
result. The exceptions generally fall into the following three categories:
1. If compliance has not been achieved within a certain timeframe, the enforcement
response should meet minimum requirements, usually associated with at least the
issuance of an administrative order (see criteria listed above) or judicial referral.
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2. Because of the need to create a strong deterrence to noncompliance, it is important
to assess penalties in certain cases, and only certain types of enforcement actions
can provide penalties. Each program must clearly define, as appropriate, the
circumstances under which nothing less than a penalty or equivalent sanction will
be acceptable. (See Criterion #6 below.)
3. In some circumstances, a judicial action or sanction is usually the only acceptable
enforcement tool. Each program must define these circumstances as appropriate.
For example, a judicial action might be required where a compliance schedule for
Federal requirements goes beyond Federal statutory deadlines.
A good program should have adequate legal authority to achieve the above objectives.
Where deficiencies have been identified, steps should be taken to fill identified gaps.
CRITERION #6 Appropriate Use of Civil Judicial and Administrative Penalty and Other
Sanction Authorities to Create Deterrence3
1. Effective Use of Civil Penalty Authorities and Other Sanctions:
Civil penalties and other sanctions play an important role in an effective enforcement
program. Deterrence of noncompliance is achieved through: 1) a credible likelihood of
detecting a violation, 2) the speed of the enforcement response, and 3) the likelihood and severity
of the sanction. While penalties or other sanctions are the critical third element in creating
deterrence, they can also contribute to greater equity among the regulated community by
recovering the economic benefit a violator gains from noncompliance over those who do comply.
Effective State and Regional programs should have a clear plan or strategy for how their
civil penalty or other sanction authorities will be used in the enforcement program. At a
minimum, penalties and/or sanctions should be obtained where programs have identified that a
penalty is appropriate (see Criterion #5 above).
The anticipated use of sanctions should be part of the State/EPA Enforcement
Agreements process, with Regions and States discussing and establishing how and when the
State generally plans to use penalties or other approaches where some sanction is required.
3 Excerpts from the Policy on "Oversight of State Civil Penalties" 2/28/86. The focus of
the policy is on both civil judicial and civil administrative penalties, and does not cover
criminal penalties.
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EPA generally prefers the use of cash penalties to other types of sanctions.4 However,
there may be other sanctions which are preferable to cash penalties in some circumstances, hi
particular, States may have a broader range of remedies than those available at the Federal level.
Examples of other sanctions may be: pipeline severance (UIC), license revocation (FIFRA) or
criminal sanctions including fines and/or incarceration. National program guidance should
clarify in general terms how the use of other types of sanctions fits into the program's penalty
scheme at the Federal and State levels, e.g., whether they are substitutes for or mitigate a cash
penalty.5 In any case, States are urged to use cash penalty authorities hi those cases for which a
penalty is "appropriate" and/or to use other sanctions pursuant to these agreements with the
Regions.
EPA encourages States to develop civil administrative penalty authority in addition to
civil judicial penalty authority, and to provide sufficient resources and support for successful
implementation where they do not already have this authority. In general, a well designed
administrative penalty authority can provide faster and more efficient use of enforcement
resources, when compared to civil judicial authorities. Both civil judicial and administrative
penalty authorities are important, complementary, and each should be used to greatest advantage.
EPA is similarly seeking to gain administrative penalty authority for those Federal programs
which do not already have it. To support State efforts to gain additional penalty authorities.
EPA will share information collected on existing State penalty authorities and on the Federal
experience with the development and use of administrative authorities.
2. Oversight of Penalty Practices:
EPA Headquarters will oversee Regional penalties to ensure Federal penalty policies are
followed. This oversight will focus both on individual penalty calculations and regional penalty
practices and patterns.
4 In limited circumstances where they meet specified criteria, EPA and DOJ policies and
procedures allow for alternative payments -- such as beneficial projects which have
economic value beyond the costs of returning to compliance - hi mitigation of their
penalty liability.
5 Until program-specific guidance is developed to define the appropriate use of civil
sanctions, the Region and State should consider whether the sanction is comparable to a
cash penalty in achieving compliance and deterring noncompliance. Costs of returning to
compliance will not be considered a penalty. Criminal authorities, while not clearly
comparable to cash penalties, can be used as effectively as cash penalties to create
deterrence in certain circumstances.
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EPA will review state penalties in the context of the State's overall enforcement program
not merely on its use of cash penalties. While individual cases will be discussed, the program
review will more broadly evaluate how penalties and other sanctions can be used most
effectively. The evaluation will consider whether the penalties or other sanctions are sought in
appropriate cases, whether the relative amounts of penalties or use of sanctions reflect increasing
severity of the violation, recalcitrance, recidivism, etc., and bear a reasonable relationship to the
economic benefit of noncompliance (as applicable) and whether they are successful in
contributing to a high rate of compliance and deterring noncompliance. EPA may also review
the extent to which State penalties have been upheld and collected.
3. Development and Use of Civil Penalty Policies:
EPA Regions are required to follow written Agency-wide and program specific penalty
policies and procedures.
EPA encourages States to develop and use their own State penalty policies or criteria for
assessing civil penalties. The advantages of using a penalty policy include:
• Leads to improved consistency;
• Is more defensible hi court;
• Generally places the Agency hi a stronger position to negotiate with the violator;
• Improves communication and support within the administering agency and among
the agency officials, attorneys and judges especially where other organizations are
responsible for imposing the penalty;
• When based on recoupment of economic benefit and a component for seriousness,
deters violations based upon economic considerations while providing some
equity among violators and nonviolators; and
• Can be used by judges as a basis for penalty decisions.
EPA encourages States to consider EPA's penalty policies as they develop their own
penalty policies.
4. Consideration of Economic Benefit of Noncompliance:
To remove incentives for noncompliance and establish deterrence through its civil
penalties, EPA endeavors to recoup the economic benefit the violator gained through
noncompliance. EPA encourages States to consider and to quantify where possible, the
economic benefit of noncompliance where this is applicable. EPA expects States to make a
reasonable effort to calculate economic benefit and encourages States to attempt to recover this
amount hi negotiations and litigation. States may use the Agency's computerized model (known
as BEN) for calculating
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that benefit or different approaches to calculating economic benefit EPA will provide technical
assistance to States on calculating the economic benefit of noncompliance, and has made the
BEN computer model available to States.
CRITERION #7 Accurate Recordkeeping and Reporting
A quality program maintains accurate and up-to-date files and records on source
performance and enforcement responses that are reviewable and accessible. All recordkeeping
and reporting should meet the requirements of the quality assurance management policy and
procedures established by each national program consistent with the Agency's Monitoring Policy
and Quality Assurance Management System. Reports from States to Regions, Regions to
Headquarters must be timely, complete and accurate to support effective program evaluation and
priority-setting.
State recordkeeping should include some documented rationale for the penalties sought to
support defensibility in court, enhance Agency's negotiating posture, and lead to greater
consistency. These records should be in the most convenient format for admiaistratien of the
State's penalty program to avoid new or different recordkeeping requirements.
CRITERION #8 Sound Overall Program Management
A quality program should have an adequate level, mix and utilization of resources,
qualified and trained staff, and adequate equipment. The intention here is not to focus on
resource and training issues unless there is poor performance identified elsewhere in the program.
In those instances, these measures can provide a basis for corrective action by the administering
agency. There may be, however, some circumstances in which base level of trained staff and
equipment can be defined by a national program where it will be utilized as an indicator of
whether the program is adequate.
Similarly, a good compliance and enforcement program should have a clear scheme for
how the operations of other related organizations, agencies and levels of government fit into the
program, especially the State. Attorneys General or other appropriate State legal organizations.
The State Agency should, at a minimum, ensure that the State AG, internal legal counsel, or
other appropriate government legal staff are consulted on the enforcement commitments the State
is making to EPA to assure that the level of legal enforcement support and associated resources
needed to accomplish the agreed-upon goals are secured. This coordination should result in
timely review of initial referral packages, satisfactory settlement of cases, as appropriate, timely
filing and prosecution of cases, and prompt action where dischargers violate consent decrees.
(See Section E, p. 26-27.
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C. OVERSIGHT PROCEDURES AND PROTOCOLS
This section addresses how EPA should conduct its oversight function, its approach,
process and follow-up, to build and improve individual programs and overall national
performance. On May 31,1985, the Agency issued the Policy on Performance-Based Assistance,
which contains guidance on how Regions should oversee assistance agreements. Both of these
policies call for oversight with a problem-solving orientation with clear identification of actions
needed to correct problems or recognize good performance.
1. Approach
The goal of oversight should be to improve the State (or Regional) compliance and
enforcement program. To accomplish this, oversight should be tailored to fit State performance
and capability. The context must be the whole State compliance and enforcement program,
although EPA's focus for audit purposes will be on national priority areas.
No new oversight process is intended here. Existing procedures such as mid-year
reviews, periodic audits and oversight inspections as established by each program and Region
should be used. Administering agencies should identify strengths and weaknesses of the State
and Federal programs and develop mutual commitments to correct problems.
EPA oversight of State performance should be consistent with the following principles:
a. Positive oversight findings should be stressed as well as the negative ones.
b. Positive steps that can be taken to build the capability of State programs in
problem areas should be emphasized. This should include providing
technical assistance and training - by EPA staff to the extent possible.
c. EPA action to correct problems should vary, depending on the
environmental or public health effect of the problem and whether it
reflects a single incident or a general problem with the State program.
d. The States should be given an opportunity to formally comment on EPA's
performance. Regions should provide information to the States that is
available on its performance against the national standards, including their
performance on meeting the "timely
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and appropriate" criteria, as well as their performance on commitments to
that State.
e. EPA should give States sufficient opportunity to correct identified
problems, and take corrective action pursuant to the criteria for direct
enforcement established in Section D.
f. EPA should use the oversight process as a means of transferring successful
regional and State approaches from one Region or State to the other.
2. Process
Several actions can result in the most constructive review of the State's programs:
a. To the extent possible, files to be audited will be identified in advance,
with some provision for random review of a percentage of other files if
necessary.
b. Experienced personnel should be used to conduct the audit/ review -- EPA
staff should be used to the extent possible to build relationships and
expertise.
c. There should be an exit interview and every opportunity should be made to
discuss findings, comment on and identify corrective steps based upon a
review draft of the written report.
d. Opportunity should be made for staffs interacting on enforcement cases
and overseeing State performance to meet personally rather than rely
solely upon formal communications — this applies to both technical and
legal staffs.
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3. Follow-up and Consequences of Oversight
When State performance meets or exceeds the criteria and measures for defining good
program performance, EPA should reward this performance in some of the following ways:
a. Reduce the number, level or scope, and/or frequency of reviews or of some
reporting requirements consistent with statutory or regulatory
requirements;
b. Reduce the frequency and number of oversight inspections; and/or
c. Allow the program more flexibility in applying resources from an almost
exclusive focus on national priorities e.g., major sources, to addressing
more priorities of concern to the State e.g., minor sources.
When State performance fails to meet the criteria for good State performance, EPA may
take some of the following actions, as appropriate:
a. Suggest changes in State procedures;
b. Suggest changes hi the State's use of resources or training of staff;
c. Provide technical assistance;
d. Increase the number of oversight inspections and/or require submittal of
information on remedial activities;
e. Provide other workable State models and practices to States with problems
in specific areas and match State staff with expertise in needed area;
f. If State enforcement action has not been timely and appropriate, EPA may
take direct enforcement action;
g. Track problem categories of cases more closely;
h. Grant awards could be conditioned by targeting additional resources to
correct identified problems or reduced based on poor performance where
such performance is not due to inadequate resources; and/or
i. Consider de-delegation if there is continued poor performance.
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D. CRITERIA FOR DIRECT FEDERAL ENFORCEMENT IN DELEGATED STATES
This section addresses criteria defining circumstances under which approved State
programs might expect direct Federal enforcement action and how EPA will carry out such
actions so as to be most supportive of strengthening State programs.
1. When Might EPA Take Direct Enforcement Action in Approved States?
A clear definition of roles and responsibilities is essential to an effective partnership,
since EPA has parallel enforcement authority under its statutes whether or not a State has an
approved or delegated program. As a matter of policy in delegated or approved programs,
primary responsibility for action will reside with State or local governments with EPA taking
action principally where a State is "unwilling or unable" to take "timely and appropriate"
enforcement action. Many States view it as a failure of their program if EPA takes an
enforcement action. This is not the approach or view adopted here. There are circumstances in
which EPA may want to support the broad national interest in creating an effective deterrent to
noncompliance beyond what a State may need to do to achieve compliance in an individual case
or to support its own program.
Because States have primary responsibility and EPA clearly does not have the resources
to take action on or to review in detail any and all violations, EPA will circumscribe its actions to
the areas listed below and address other issues concerning State enforcement action hi the
context of its broader oversight responsibilities. The following are four types of cases EPA may
consider taking direct enforcement action where we have parallel legal authority to take
enforcement action:
a. State requests EPA action
b. State enforcement response is not timely and appropriate
c. National precedents (legal or program)
d. Violation of EPA order or consent decree
In deciding whether to take direct enforcement in the above types of cases, EPA will
consider the following factors:
Cases specifically designated as nationally significant (e.g., significant
noncompliers, explicit national or regional priorities)
Significant environmental or public health damage or risk involved
Significant economic benefit gained by violator
Interstate issues (multiple States or Regions)
Repeat patterns of violations and violators
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How these factors are applied for the various types of cases is discussed below.
a. State requests EPA action:
The State may request EPA to take the enforcement action for several reasons
including but not limited to: where State authority is inadequate, interstate issues
involving multiple States which they cannot resolve by themselves, or where State
resources of expertise are inadequate, particularly to address the significant
violation/violators in the State in a timely and appropriate manner. EPA should
honor requests by States for support in enforcement EPA will follow its priorities
in meeting any such requests for assistance, considering significance of
environmental or public health damage or risk involved, significant economic
benefit gained by a violator, repeat patterns of violations and violators. Based on
this general guidance, each program office may develop more specific guidance
on the types of violations on which EPA should focus. Regions and States are
strongly encouraged to plan in advance for any such requests for or areas needing
EPA enforcement assistance during the State/EPA Enforcement Agreements
Process.
b. State Enforcement is not "Timely and Appropriate"
The most critical determinant of whether EPA will take direct enforcement action
in an approved State is whether the State has or will take timely and appropriate
enforcement action as defined by national program guidance and State/Regional
agreements. EPA will defer to State action if it is "timely and appropriate" except
in very limited circumstances: where a State has requested EPA action (a, above),
there is a national legal or program precedent which cannot be addressed through
coordinated State/Federal action (c, below), EPA is enforcing its own enforcement
action (d, below) or the case of a repeat violator, where the State response is likely
to prove ineffective given the pattern of repeat violations and prior history of the
State's success in addressing past violations.
(i) . Untimely State Enforcement Response:
If a State action is untimely, EPA Regions must determine after advance
notification and consultation with the State whether the State is moving
expeditiously to resolve the violation in an "appropriate" manner.
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(ii) Inappropriate State Action:
EPA may take direct action if the State enforcement action falls short of
that agreed to in advance in the State/EPA Enforcement Agreements as
meeting the requirements of a formal enforcement response (See Section
B, page 13) where a formal enforcement response is required. EPA may
also take action if the content of the enforcement action is inappropriate,
i.e., if remedies are clearly inappropriate to correct the violation, if
compliance schedules are unacceptably extended, or if there is no
appropriate penalty or other sanction.
(iii) Inappropriate Penalty or other Sanction:
For types of violations identified hi national program guidance as
requiring a penalty or equivalent sanction, EPA will take action to recover
a penalty if a State has not assessed a penalty or other appropriate sanction.
EPA generally will not consider taking direct enforcement action solely for
recovery of additional penalties unless a State penalty is determined to be
grossly deficient after considering all of the circumstances of the case and
the national interest. In making this determination, EPA will give every
consideration to the State's own penalty authority and any applicable State
penalty policy. EPA will consider whether that State's penalty bears any
reasonable relationship to the seriousness of the violation, the economic
benefit gained by the violator (where applicable) and any other unique
factors in the case. While this policy provides the basis for deciding
whether to take direct Federal action on the basis of an inadequate penalty,
this issue should be discussed in more detail during the agreements
process to address any state-specific circumstances and procedures
established to address generic problems in specific cases. Where
identified in national guidance and agreed to between the Region and
State, other sanctions will be acceptable as substitutes or mitigation of
penalty amounts in these considerations.
Program-specific national guidance on expectations for State penalty
assessments may be developed hi consultation with the States and applied
for determining adequacy of penalty amounts after being applied in
practice hi EPA Regions. It is the current expectation of Agency managers
that EPA will continue to gain experience in implementing its own penalty
policies before national programs consider such guidance. Thus, in the
near term a determination that a penalty is "grossly deficient" will remain a
judgment call made on a case-by-case basis.
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c. National Precedents
This is the smallest category of cases in which EPA may take direct enforcement
action in an approved State, and will occur rarely hi practice. These cases are
limited to those of first impression in law or those fundamental to establishing a
basic element of the national compliance and enforcement program. This is
particularly important for early enforcement cases under a new program or issues
that affect implementation of the program on a national basis. Some of these
cases may most appropriately be managed or coordinated at the national level.
Additional guidance on how potential cases will be identified, decisions made to
proceed and involvement of States and Regions in that process, has been
developed as Appendix B to this document.
d. Violation of EPA order or consent decree:
EPA places a high priority on following through on enforcement actions until
final compliance is achieved. If EPA has taken administrative, civil or criminal
judicial enforcement in a delegated or approved State, EPA will take any follow
up enforcement action on violations of those agreements or orders to preserve the
integrity of Federal enforcement actions.
2. How Should EPA Take Action So As To Better Support Strong State Programs?
Section E describes hi some detail the principles and procedures for advance notification
and consultation with States. These are imperatives for a sound working relationship. In all of
these circumstances, where EPA may overfile a State action on the basis that it is not timely and
appropriate, EPA should work with the State as early as possible in the case, well before
completion of a State action which, if resulting in expeditious compliance by the facility, would
render any subsequent EPA involvement unconstructive, ineffective, or moot. This is
particularly important since it is EPA policy that once a case has been commenced, EPA
generally will not withdraw that case in light of subsequent or simultaneous State enforcement
action.
In particular, Regions also should identify with their States particular areas in which
arrangements can or should be made, in advance, for direct EPA enforcement support where
State authorities are inadequate or compliance has been a continuing problem.
There are several other approaches identified here for how EPA can take enforcement
action, where it is appropriate, in a manner which can better support States.
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To the maximum extent possible, EPA should make arrangements with States to:
a. Take joint State/Federal action — particularly where a State is responsibly
moving to correct a violation but lacks the necessary authorities, resources,
or national or interstate perspective appropriate to the case.
b. Use State inspection or other data and witnesses, as appropriate.
c. Involve States in creative settlements and to participate in case
development — so that the credibility of States as the primary actor is
perceived and realized.
d. Arrange for division of penalties with State and local governments67 (to
the extent they participate in Federal enforcement actions, and where
permitted by law) — to enhance Federal/State cooperation in enforcement.
e. Issue joint press releases and share credit with the State — to ensure EPA is
not hi competition with the State and that EPA action is not erroneously
perceived as a weakness or failure in the State's program.
-- to avoid conflicting actions and to building a common understanding of
goals and the State and Federal perspectives.
See Appendix C for Agency Policy on"Division of Penalties with State and Local
Governments," issued October 30,1985.
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3. How Do the Expectations for "Timely and Appropriate Action" Apply to EPA in
Delegated States?
In delegated States, EPA performs an oversight function, standing ready to take direct
Federal enforcement action based upon the factors stated above. In its oversight capacity, in
most cases, EPA will not obtain real-time data. As indicated hi Section F on State Reporting,
EPA will receive quarterly reports and will supplement these with more frequent informal
communications on the status of key cases. Therefore, we do not expect EPA Regions, through
then- oversight, to be able to take direct enforcement action following the exact same timeframes
as those that apply to the administering agency. However, when EPA does determine it is
appropriate to take direct Federal action, EPA staff are expected to adhere to the same
timeframes as applicable to the States, starting with the assumption of responsibility for
enforcement action.
E. AD VANCE NOTIFICATION AND CONSULTATION
A policy of "no surprises" must be the centerpiece of any effort to ensure the productive
use of limited Federal and State resources and an effective "partnership" in achieving
compliance. This principle should be applied to all aspects of the compliance and enforcement
program covering inspections, enforcement activities, press releases and public information, and
management data summaries upon which State and national performance are assessed.
In order to guarantee that there is ample advance notification and consultation between
the proper State and Federal officials, EPA Regions should confer annually with each State,
discuss the following areas and devise agreements as appropriate. The agreements should be
unique to each State and need not cover all areas -- so long as there is a clear understanding and
discussion of how each area will be addressed.
1. Advance Notification to Affected States of Intended EPA Inspections and
Enforcement Actions
Agreements should identify:
Who should be notified, e.g.,
the head of the program if it involves potential Federal enforcement; and
who is notified of proposed/planned Federal inspections.
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How the State will be notified, e.g.,
the agencies share inspection lists; and
the agency contact receives a telephone call on a proposed Federal
enforcement case.
When they will be notified -- at what point(s) in the process, e.g.,
when a case is being considered; and/or
when a case is ready to be referred, or notice order issued.
Some specific provisions need to be made to address the following:
a. Advance Notification of State Attorneys General or other legal staif of
potential EPA enforcement actions7
While EPA's primary relationship with the State is and should continue to be with
the State agency that has been delegated or been approved to administer the
programs, EPA needs to ensure that all parties in the State affected by a pending
EPA enforcement action receive appropriate advance notification. In addition,
when EPA negotiates commitments each year with the State to address specific
significant violators, it is important that all the parties affected by these
commitments are aware of the legal enforcement support and associated resources
needed to accomplish these goals.
As part of the State/EPA Enforcement Agreements process, the Region
should discuss with the Sate agency then* internal procedures and/or protocols for
advance notification and consultation with the State AG or other legal staff. The
State agency is responsible for assuring that the State AG or other legal staff are
properly notified and consulted about planned Federal enforcement actions and/or
enforcement initiatives on an ongoing basis. States are strongly encouraged to
commit advance notification and consultation procedures/protocols reached
between the State agency and the State AG (or State legal staff, as appropriate) to
writing. The Regions should seek to incorporate these written protocols into the
State/EPA Enforcement Agreements.
In some States there are legal organizations that have direct enforcement authority which
by-passes the State AG, e.g., District Attorneys, internal legal counsel, Governor's
General Counsel. In these instances, this guidance would apply to these other
organizations.
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The Region should do everything possible to work through the State agency on the issue
of communicating with the State or other legal staff on potential EPA enforcement actions as
well as other matters. However, if the State agency does not have a workable internal procedure
and if problems persist, the Region, after advance notification and consultation with the State
agency, may make arrangements for direct communications with the State AG or other legal
staff.
The Region and State agency should discuss how the outside legal organizations will be
consulted on the commitments the State is making to EPA on addressing significant violators
each year. These consultations are intended to clarify the legal enforcement support needed to
accomplish these goals. This is particularly important for those State, agencies dependent upon
the State AG or other outside legal organizations to implement their enforcement program.
State agencies are also encouraged to notify these organizations of the anticipated timing
of the negotiations each year with EPA on the Enforcement Agreements, grants, and related
documents.
Regions are encouraged to work with their State agencies to set up a joint meeting at least
annually to which all parties are invited~the program and legal staffs of both the EPA Region
and the State agency(s), plus U.S. Attorney staff and State AG staff- to review EPA's
enforcement priorities and recent program guidance.
b. Federal Facilities
Federal facilities may involve a greater or different need for coordination,
particularly where the Federal facilities request EPA technical assistance of where
EPA is statutorily required to conduct inspections (e.g., under RCRA). The
advance notification and consultation protocols in the State/EPA Enforcement
Agreements should incorporate any of the types of special arrangements necessary
for Federal facilities. The protocols should also address how the State will be
involved in the review of Federal agency A-106 budget submissions, and include
plans for a joint annual review of patterns of compliance problems at Federal
facilities in the State.
c. Criminal Enforcement
Although the Policy Framework does not apply to the criminal enforcement
program, to improve the coordination with States on criminal investigations and
assist the States in their criminal enforcement efforts, the Regions should discuss
with States any affirmative plans for cross-referrals and cooperative criminal
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investigations. Such discussions should include the Special Agent in Charge and
appropriate program staff familiar with criminal enforcement
In cases where other States or jurisdictions may be directly and materially affected by the
violation, i.e., environmental or public health impacts, EPA's Regional Offices should attempt to
notify all of the States that are interested parties or are affected by the enforcement action through
the communication channels established by the State agreements, working through the
appropriate Regional Office. This notification process is particularly important for hazardous
waste cases in which regulatees often operate across State boundaries.
Protocols for advance notification must be established with the understanding that each
party will respect the other's need for confidentiality and discretion, in regard to the information
being shared where it is appropriate. Continuing problems in this regard will be cause for
exceptions to the basic principle of advance notification.
Many of our statutes or regulations already specify procedures for advance notification of
the State. The State/Federal agreements are intended to supplement these minimum
requirements.
2. Establishment of a Consultative Process
Advance notification is only an essential first step and should not be construed as the
desired end result of these State/Federal agreements. The processes established should be
consultative and should be designed to achieve the following:
a. Inspections
Advance notice to States through sharing of lists of planned Federal inspections
should be designed so that State and Federal agencies can properly coordinate the
scheduling of site inspections and facilitate joint or multi-media inspections as
appropriate. This should generally be done for all programs whether or not they
are delegated, except for investigative inspections which would be jeopardized by
this process.
b. Enforcement Actions
Federal and State officials must be able to keep one another current on the status
of enforcement actions against noncomplying facilities. Regularly scheduled
meetings or conference calls at which active and proposed cases and inspections
are discussed may achieve these purposes.
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3. Sharing Compliance and Enforcement Information
The Region and State should discuss the need for a process to share, as much as
practicable, inspection results, monitoring reports, evidence, including testimony, where
applicable for Federal and/or State enforcement proceedings. The Regions should also establish
mechanisms for sharing with the States copies of reports generated with data submitted by the
Regions and States, including comparative data - other States in the Region and across Regions.
4. Dispute Resolution
The Region and State should agree in advance on a process fqr resolving disputes,
especially differences in interpretation of regulations or program goals as they may affect
resolution of individual instances of noncompliance. As stated in the policy on Performance-
Based Assistance, the purpose in laying out a process by which issues can be quickly surfaced up
the chain of command in both the Regions and States is to ensure that significant problems
receive the prompt .attention of managers capable of solving these problems expeditiously.
5. Publicizing Enforcement Activities
EPA has made commitments to account publicly for its compliance and enforcement
programs. It is EPA's policy to publicize all judicial enforcement actions and significant
administrative actions to both encourage compliance and serve as a deterrent to noncompliance.
While State philosophies on these matters may vary, the Region and State should discuss
opportunities for joint press releases on enforcement actions and public accounting of both State
and Federal accomplishments in compliance and enforcement.
Discussions should address how and when this coordination would take place. Regions
should consult with the State on any enforcement related EPA press release or other media event
which affects the State. To the extent possible, the State should be given an opportunity to join
in the press release or press conference if it has been involved hi the underlying enforcement
action. Further, EPA generated press releases and public information reports should
acknowledge and give credit to relevant State actions and accomplishments when appropriate.
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6. Publicly Reported Performance Data
Regions should discuss with States mechanisms for ensuring the accuracy of data used to
generate monthly, quarterly and/or annual reports on the status of State and Federal compliance
and enforcement activities. Opportunities should be provided to verify the accuracy of the data
with the States prior to transmittal to headquarters. Time constraints may be a real limitation on
what can be accomplished, but it is important to establish appropriate checks and control points
if we are to provide an accurate reflection of our mutual accomplishments. If there are no data
accuracy concerns, these mechanisms may not be needed.
F. STATE REPORTING
This section reviews key reporting and recordkeeping requirements for management data
and public reporting on compliance and enforcement program accomplishments. It also
addresses related reporting considerations such as reporting frequency and quality assurance.
1. Overview
A strong and well managed national compliance and enforcement program needs reliable
performance information on which to judge success and identify areas needing management
attention. The following outlines the reporting and recordkeeping framework for monitoring
enforcement and compliance program performance. The information will be used by the
Agency's chief executives to manage EPA operations, and to convey our combined Federal and
State performance record to others outside the Agency. This framework is limited in its
application to information gathered for management purposes. It is not intended to apply to the
environmental data and reporting on a source-by-source basis which is gathered routinely by the
Agency from Regions and States under its source reporting programs and ongoing operations.
The framework should serve as a stable guide to the national programs as they develop, in
cooperation with the Regions and States, the measures and reporting requirements they will use
to assess performance in implementing national compliance and enforcement programs.
Five measures of compliance and enforcement performance will be used for reporting
purposes, identified in sequence below. The first two measure compliance results: (1) overall
compliance rate for the regulated community; and (2) correction of the most significant
violations. The Agency is working diligently to establish clear and reliable indicators for these
two measures, recognizing the desirability of managing based as much as possible on results.
While it is most desirable to find ways to ultimately examine the environmental benefits of
compliance and enforcement actions, i.e., pollution levels reduced, this will not be accomplished
in the near term.
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The two compliance results measures are supplemented with three measures of
enforcement activity: (3) inspection levels as an indicator of the reliability of compliance data
and as an indicator of field presence for deterrence purposes; (4) formal administrative
enforcement actions undertaken; and (5) judicial referrals and filed court cases, the latter two
measures of enforcement activities both serving as indicators of enforcement strength and the
will to enforce.
In addition to these five reporting requirements, the Agency is introducing two new areas
of recordkeeping requirements to support general management oversight of the national
enforcement effort: (1) success in meeting new management milestones for defining timely and
appropriate enforcement action; and (2) the level of penalties assessed and collected. Records
should be maintained by States and Regions for review during the course of the year and to
support an assessment at the end of the year on how well the agencies have done and how
appropriate performance expectations might best be defined.
2. Reported Measures of Performance
Programs and Regions should ensure the first five measures of performance are required
to be reported on a quarterly basis:
a. Compliance levels can be measured according to several different
approaches. National program guidance should describe the approach
each has selected as most appropriate given the characteristics of its
program and regulated community. Each program should, at a minimum,
report full physical compliance rates and also distinguish where relevant in
reporting compliance levels between final "physical" compliance
(compliance with emissions limits) and "paper" compliance (violation of
emissions limits but following a compliances schedule).
b. Progress in Returning Significant Violations to Compliance Each program
in putting together its guidance should specifically define what it measures
as significant violations. Lists of significant violators should be compiled
jointly.by the Region and State. The Agency has two indicators of
performance in this area. One is a static measure of progress against a
beginning-of-year backlog of significant violators not yet brought into
compliance. The second is a dynamic balance sheet which adds to the
beginning-of-year inventory any new significant violators as they are
found and keeps a running tally of those for which a formal enforcement
action was taken, those which were brought into compliance, or those
which remain, pending enforcement action.
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Each program should also anticipate being required to set quarterly
targets for reduction of its beginning-of-year backlog of significant
violators. Targets will be set for States and Regions on the basis of either
returning the violator to compliance or taking a formal enforcement action
which will lead to expeditious physical (full) compliance. Reporting of
progress against significant violations will be set on the basis of these
same two categories of response. In developing its guidance, each
program should specify the types of enforcement actions which qualify as
having taken "a formal enforcement action."
c. Inspections are conducted for many purposes, including confirmation of
compliance levels. Reporting on inspections has been a long standing
practice. Regions and States should be asked to provide specific quarterly
commitments and reporting on the number of inspections to be conducted.
Where programs have broken down inspection reporting into different
classes to reflect the different purposes (for example, sample inspections,
"walk-through," or records check inspections) this reporting is expected to
continue. Each program, as it draws up its guidance, should be as clear
and specific as possible in defining the different categories of inspection
activity to be reported.
d. Formal administrative enforcement actions will be reported as the critical
indicator of the level of administrative enforcement activity being carried
on by environmental enforcement agencies. It is not our intention to
provide a comprehensive reporting of all actions, both informal and
formal, being taken to secure compliance. At the same time, it is
recognized that there are many different informal techniques used which
succeed in getting sources to return to compliance. What is sought here is
a telling indicator which will keep reporting as clear-cut and
unburdensome as possible.
In preparing its guidance each program should list the specific
actions to be included under this reporting area. Each program should be
guided by the characteristics of a formal administrative action set forth in
Section B on "Timely and Appropriate Enforcement Action." For
programs without formal administrative authority, such as Drinking Water,
other surrogate measures should be defined.
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e. Judicial Actions is an area where there has been a long standing practice of
Federal reporting with no corresponding State data. Commensurate with
current reporting practices within EPA, the number of State civil referrals
and filed cases will now be reported. We will also now include criminal
judicial actions. These should be reported as a separate class and be
counted only after they are filed in court in recognition of their sensitive
nature.
3. Recordkeeping for Performance Measurement
There are two performance areas for which States and Regions will be asked to retain
accessible records and summary data: (1) timeliness and appropriateness of response to
violations; and (2) penalties. These categories of information will be considered for future
development as measures for possible inclusion in the Agency's management and reporting
systems.
a. Timeliness and appropriateness of State and Federal response to violations
is the principal subject of new guidance being developed by each program.
Administering agencies need to ensure that adequate tracking systems are
in place to assess the timeliness and appropriateness of actions on an
ongoing basis. Implementation of timely and appropriate criteria should
also be closely monitored to ensure that sources subject to the guidance are
properly identified vand made part of the covered universe. The Program
Offices, in conjunction with the Regions, are expected to report
periodically on both EPA's and the States' performance in meeting the
timely and appropriate criteria and to periodically reassess the criteria. As
programs gain experience, they should consider whether "timeliness"
should be measured quantitatively as a performance accountability
measure or qualitatively through program audits.
b. Penalty programs are essential to the effective working of an
environmental enforcement program. Sufficient documentation needs to
be kepi to enable the Region to evaluate whether the State obtained a
penalty where appropriate, the State's rationale for the penalty, and, where
appropriate, a calculation of any economic benefit of noncompliance
gained by the violator. Records need to be kept of the number and amount
of penalties issued by State and Federal program offices regularly
assessing penalties, both those assessed and collected. These records and
summary data should be available for review at the time of annual
program audits and, in the event of information requests
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by external groups, on the extent of penalties assessed at any point in time.
Each program office in preparing its guidance should specifically address
the need for recordkeeping on penalties.
4. Future Improvements in Enforcement Management Information Systems
EPA is working to fill the gaps in its current enforcement management information and is
developing a guide to State and national program managers in setting priorities for future design
and development work on these systems.
In the near term, EPA is exploring ways to use the current management systems to better
reinforce timely and appropriate enforce response and follow-through on enforcement actions.
EPA Program Offices, in consultation with Regions and States, should develop ways to better
measure and report on timeliness of enforcement actions. The focus for follow-through will be
on tracking compliance with EPA consent decrees and administrative orders. State follow-
through will be part of general regional oversight.
Other potential enforcement management indicators, such as the deterrence effects of
enforcement, the quality of enforcement actions, an extended compliance picture, and overall
environmental results of enforcement actions, are longer term issues to be considered after the
near-term issues are addressed.
5. Reporting Considerations
There are three areas for special consideration by the programs as they put together their
guidance on reporting requirements:
a. Quality assurance and quality control of reported data is essential as these
are the critical indicators of program performance which will be used in
making program management decisions of priority, resource levels, and
direction. This information must be as reliable as possible. Quality
assurance and quality control of data encompasses three types of activities
including: (1) setting up initial reporting procedures; (2) building hi
information review and confirmation loops; and (3) conducting routine
audits and reviews of reports and reporting systems. Each program in
preparing its guidance should describe the safeguards it uses in its
reporting, review and confirmation procedures, and describe the audit
protocols it will use to ensure the reliability of enforcement and
compliance data.
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b. The frequency of formal reporting should be done on a quarterly basis
unless there is a specific performance problem in a State or compelling
program need for more frequent (e.g., monthly) reporting, which may be
necessary on an interim basis due either to newness or their importance. A
quarterly reporting frequency is designed for oversight purposes. It is not
designed to provide for "real time" information, that is, instant access to
information on the status of a case. However, it is anticipated that formal
reporting will be supplemented with more frequent informal
communications, such as monthly conference calls, between the Regions
and States on the progress of key cases of concern.
c. Federal facility compliance data should be reported as part of each
program's reporting measures and commitments. The Regions may also
request States to provide additional information on Federal facilities
compliance status, if needed, and if mutual agreement can be reached, as
part of the Enforcement Agreements process.
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APPENDIX A: ANNUAL PRIORITIES AND PROGRAM GUIDANCE
Annual Priorities for Implementing Agreements
FY 1985: Given the enormity of the task in the first year, three priorities were established:
• defining expectations for timely and appropriate enforcement action;
• establishing protocols for advance notification and consultation; and
• reporting State data.
FY 1986: Building on the FY 1985 process, three areas were emphasized:
• expanding the scope of the agreements process to cover all delegable
programs;
• adapting national guidance to State-specific circumstances; and
• ensuring a constructive process for reaching agreement.
FY 1987: Continuing to refine the approaches and working relationships with the States,
three areas are to be emphasized:
• improving the implementation and monitoring of timely and appropriate
enforcement response with particular emphasis on improving the use of
penalty authorities;
• improving the involvement of States Attorneys General (or other
appropriate legal staff) in the agreements process; and
• implementing the revised Federal Facilities Compliance Strategy.
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APPENDIX A, Page 1 of 2
EXISTING OR PLANNED NATIONAL GUIDANCE AFFECTING STATE/EPA ENFORCEMENT AGREEMENTS PROCESS
Cross-cutting National Guidance: • Revised Policy Framework for State/Federal Enforcement Agreements—reissued 8/86
• Agency-wide Policy on Performance-Based Assistance—issued by Admin. 5/31/85
NOTE: Underlining represents guidance still to be issued.
Revised 8/14/86
NPDES
Drinking Water
Air
RCRA
FIFRA
Fed. Fac.
National Guidance Oversight
of NPDES Programs 1987"
(issued 4/18/86)
Final Regulation Definition of
non-compliance reported in
QNCR (issued 8/26/85)
QNCR Guidance (issued 3/86)
Inspection Strategy and
Guidance (issued 4/8S)
Revised EMS - Enforcement
Management System (issued
3/86)
NPDES Federal Penalty Policy
(issued 2/11/86)
Strategy for issuance of
NPDES permits (issued 2/86)
o "FY 85 Initiatives on
Compliance Monitoring &
Enforcement Oversight"
o "Final Guidance on PWS
Grant Program Implementation"
(3/20/84)
o Regs-NIPDWR,40CEB.
Part 141 and 142
o DW annual Reporting
Requirements - "Guidance for
PWSS Program Reporting
Requirements" (7/9/84)
o "FYs 85-86 Strategy for
Eliminating Persistent Violations
at Community Water Systems"
memo from Paul Baltay (3/18/85)
o Guidance for the Development
of FY 86 PWSS State Program
Plans and Enforcement
Agreements" (issued 7/3/85)
o "Guidance on Timely &
Appropriate...for Significant
Air Violators" (6/28/84)
o "Timely and Approp.
Enforcement Response
Guidance" (4/11/86)
o National Air Audit System
Guidelines for FY 1986
(issued 2/86)
o "Guidance on Federally-
Reportable Violations"
(4/11/86)
o Inspection Frequency
Guidance (issued 3/19/85 and
reissued 6/11/86)
o "Final Technical Guidance
on Review and Use of Excess
Emission Reports" memo
from Ed Reich to Air Branch
Chiefs — Guidance for
Regional Offices (issued
10/5/84)
o "Interim National
Criteria for a Quality
Hazardous Waste
Management Program
under RCRA" (reissued
6/86)
o "RCRA Penalty Policy"
(5/8/84)
o FY 1987 "RCRA
Implementation Plan"
(reissued 5/19/86)
o "RCRA Enforcement
Response Policy" (issued
12/21/84) (to be revised bv
12/86^
o "Compliance and
Enforcement Program
Descriptions in Final
Authorization Application
and State Enforcement
Strategies," memo from Lee
Thomas to RAs (issued
6/12/84)
o Final FY 87
Enforcement &
Certification Grant
Guidance (issued
4/18/86)
o Interpretative Rule —
FIFRA State Primacy
Enforcement
Responsibilities" 40 FR
Part 173 (1/5/83)
o FF Compliance
Strategy (to be issued
10/861
o FF Prog. Manual for
Implementing CERCLA
Responsibilities of
Federal Agencies
(draft/85: to be issued
in final after CERCLA
reauthorization>
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APPENDIX A
Page 2 of2
NPDES
Drinking Water
o "Guidance on FY 86 UIC
Enforcement Agreements"
ICPG #40 (issued 6/28/85)
o "FY 87 SPMS & OWAS
Targets for the PWSS
Program (SNC definition)
(issued 7/10/86)
o Guidance on FY 87 UIC
Enforcement Agreements
(draft issued 7/1/86)
o Guidance on FY 87 PWSS
Enforcement Agreements
(issued 8/8/86)
o Guidance on the Use of
AO Authority under
SDWA Amendments (to.
be issued pending
legislation)
Air
o "Technical Guidance
on the Review and use
of Coal Sampling and
Analysis Data" EPA-
340/1-82-010 issued
10/30/85 Guidance for
Regional Offices
RCRA
o Compliance
Monitoring &
Enforcement Log ~
form for recording
monthly
compliance data
from States &
Regions
o Technical
Enforcement
Guidance on
Ground Water
Monitoring
(Interim final 8/85)
o Compliance order
Guidance for
Ground Water '
Monitoring (issued
8/85)
o Loss of Interim
Status Guidance
(issued 8/85)
FIFRA
'
Fed. Fac.
,
t
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APPENDIX B*
Page 1 of6
EPA POLICY ON IMPLEMENTING NATIONALLY MANAGED OR
COORDINATED ENFORCEMENT ACTIONS
This policy addresses how EPA will handle the small subset of federal civil enforcement
cases, both administrative and judicial, which are managed or coordinated at the EPA
Headquarters level. The policy was developed to ensure these actions are identified, developed
and concluded consistent with the principles set forth in the Policy Framework for State/EPA
Enforcement "Agreements." It covers the criteria and process for deciding what cases might be
best managed or coordinated nationally; the roles and relationships of EPA Headquarters and
regional offices and the States; and protocols for active and early consultation with the involved
States and Regions.
A. Criteria for Nationally Managed or Coordinated Enforcement Cases
Most enforcement cases are handled at the state, local or EPA regional level for reasons
of efficiency and effectiveness and because of the primary role that States and local governments
have in enforcement under most of the major environmental statutes. The Policy Framework
identifies several instances in which direct enforcement actions may be taken by EPA, which in
most instances will be handled by EPA Regions pursuant to the State/EPA Enforcement
"Agreements." However, some of those cases may most appropriately be managed or
coordinated at the national level by EPA Headquarters.
In addition to instances in which an EPA Region requests Headquarters assistance or lead
in an enforcement case, these "national" cases will usually arise within the context of three of the
criteria for direct EPA action mentioned in the Policy Framework:
— National Precedent (legal or program precedent): the degree to which the case is
one of first impression in law or the decision is fundamental to establishing a
basic element of the national compliance and enforcement program. This is
particularly important for early enforcement cases under a new program or issues
that affect implementation of the program on a national basis.
Repeat Patterns of Violations and Violators: the degree to which there are
significant patterns of repeat violations at a given facility or type of source or
patterns of violations within multi-facility regulated entities. The latter is of
particular concern where the noncompliance is a matter of national (e.g.,
corporate) policy or the lack of sound environmental management policies and
practices at a national level which can best be remedied through settlement
provisions which affect such national policies and practices.
* * Issued by the Assistant Administrator for the Office of Enforcement and Compliance
Monitoring.
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APPENDIX B,(cont'd.)
Page 2 of6
Interstate Issues (multiple States or Regions): the degree to which a case may
cross regional or state boundaries and may require a consistent approach. This is
particularly important where there may be a potential for interregional transfers of
pollution problems and the case will present such issues when EPA Regions or
States are defining enforcement remedies.
EPA's response to any of these circumstances can range from increased headquarters
oversight and legal or technical assistance, to close coordination of State and Regional
enforcement actions, to direct management of the case by Headquarters.
There are essentially two types of "national" cases. A nationally managed case is one in
which EPA Headquarters has the responsibility for the legal and/or technical development and
management of the case(s) from the time the development and management of the case(s) should
be nationally managed in accordance with the criteria and process set forth in this policy. A
nationally coordinated case(s) is one which preserves responsibility for lead legal and technical
development and management of the cases within the respective EPA regions and/or State or
local governments. This is subject, however, to the oversight, coordination and management by a
lead Headquarters attorney and/or program staff on issues of national or programmatic scope to
ensure that all of the cases within the scope of the nationally coordinated case are resolved to
achieve the same or compatible results in furtherance of EPA's national program and
enforcement goals.
Section C below describes more fully the roles and relationships of EPA headquarters,
regional, and state personnel, both legal and technical, in either nationally managed or nationally
coordinated cases.
There are several factors applied to assess whether, in addition to the normal
Headquarters oversight, a case should be handled as: (1) nationally managed; or (2) nationally
coordinated. None of these factors may necessarily be sufficient in themselves but should be
viewed as a whole. These factors will include:
availability or most efficient use of State or EPA Regional or Headquarters
resources;
ability of the agency to affect the outcome through alternative means. One
example is issuance of timely policy guidance which would enable the States,
local governments or EPA Regions to establish the appropriate precedent through
independent action;
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APPENDIX B,(cont'd.)
Page 3 of6
favorable venue considerations;
environmental results which could be achieved through discrete versus concerted
and coordinated action, such as potential for affecting overall corporate
environmental practices; and
location of government legal and technical expertise at EPA Headquarters or in
the Regions, recognizing that expertise frequently can be tapped and arrangements
made to make expertise available where needed.
To the extent possible, where cases warrant close national attention, EPA Headquarters
will coordinate rather than directly manage the case on a national basis thereby enabling Regions
and States to better reflect facility-specific enforcement considerations.
B. Process for Identifying Nationally-Managed or Coordinated Cases — Roles and
Responsibilities
EPA recognizes the importance of anticipating the need for nationally managed or
coordinated cases to help strengthen our national enforcement presence, and of widely sharing
information both on patterns of violations and violators and on legal and program precedent with
EPA Regions and States. To do this:
Headquarters program offices, in cooperation with the Office of Enforcement and
Compliance Monitoring, should use the Agency's strategic planning process to help
identify upcoming enforcement cases of national precedence and importance. They also
should develop and disseminate to Regions information on anticipated or likely patterns
or sources of violations for specific industries and types of facilities.
Regional offices are responsible for raising to Headquarters situations which pose
significant legal or program precedent or those in which patterns of violations are
occurring or which are likely to be generic industry-wide or company-wide which would
make national case management or coordination particularly effective.
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APPENDIX B, (cont'd.)
Page 4 of6
State and local officials are encouraged to raise to EPA Regional Offices situations
identified above which would make national case management or coordination
particularly effective.
Whether a case will be managed or coordinated at the national level will be decided by
the Assistant Administrator for Enforcement and Compliance Monitoring after full consultation
with the affected program Assistant Administrators, Regional Administrators and State or local
governments in what is intended to be a consensus building process. There will be a full
discussion among all of the parties of all of the ramifications for the program and a review of all
of the important criteria involved in the decision. In the event of a lack of consensus as to
whether the case should be managed or coordinated at the national level, the AA for OECM shall
make the determination, with an opportunity for a hearing and timely appeal to the Administrator
or Deputy Administrator by the Regional or other EPA Assistant Administrator.
The Regions will be responsible for communicating with any affected States using
mechanisms established in the State/EPA Enforcement "Agreements," to raise the possibility of
national case management or coordination and to ensure that timely information on the status of
any independent state, local or regional enforcement actions can and would be factored into the
decisions regarding: (1) whether to manage the case nationally; (2) whether to coordinate the
case nationally; (3) what legal and technical assistance might be provided in a State lead case;
and (4) what facilities to include in the action.
C. Case Development — Roles and Responsibilities
Nationally managed cases are those that are managed out of EPA Headquarters with a
lead headquarters enforcement attorney and a designated lead headquarters program contact.
Notwithstanding headquarters lead, in most instances, timely and responsive Regional office
legal and technical support and assistance is expected in developing and managing the case. In
these instances, the Regions will receive credit for a case referral (on a facility basis) for this
effort. The decision on the extent of Regional office involvement and case referral credit will be
made at the time the decision is made that the case should be nationally managed. Regions
which play a significant role in the development and/or prosecution of a case will be involved in
the decision-making process in any case settlement proceedings and the Regional Administrator
will have the opportunity to formally concur hi any settlement.
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APPENDIX B,(cont'd.)
Page 5 of6
Nationally coordinated cases are those that are coordinated out of EPA Headquarters with
lead regional and/or state or local attorneys and associated program office staff. The
Headquarters attorney assigned to the case(s) and designated Headquarters program office
contact have clear responsibility for ensuring national issues involved in the case which require
national coordination are clearly identified and developed and in coordinating the facility-specific
actions of the regional offices to ensure that the remedies and policies applied are consistent.
This goes beyond the normal Headquarters oversight role. The Headquarters officials have both
a facilitator role in coordinating information exchange and a policy role in influencing the
outcome for the identified issues of national concern.
Whether a case is nationally managed or nationally coordinated, as a general rule if EPA
is managing a case, States will be invited to participate fully hi case development, and to
formally join in the proceedings, if they so desire, by attending meetings and planning sessions.
State will be consulted on settlement decisions but will be asked to formally concur hi the
settlement only if they are parties to the litigation.
On a case-by-case basis, the National Enforcement and Investigations Center (NEIC) may
be asked to play a role in either type of national case to coordinate evidence gathering, provide
needed consistency in technical case development and policy, witnesses and chain of custody,
and/or to monitor consent decree compliance.
D. Press Releases and Major Communications
A communications plan should be developed at any early stage in the process. This
should ensure that all of the participating parties have an opportunity to communicate then- role
in the case and its outcome. Most important, the communications plan should ensure that the
essential message from the case (e.g., the anticipated precedents) gets sufficient public attention
to serve as a deterrent for potential future violations.
All regional and state co-plaintiffs will be able to issue their own regional, state-specific
or joint press releases regarding the case. However, the timing of those releases should be
coordinated so that they are released simultaneously, if possible.
It is particularly important that the agencies get maximum benefit from the deterrent
effect of these significant national cases through such mechanisms as:
more detailed press releases to trade publications i.e., with background
information and questions and answers
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APPENDIX B,(cont'd.)
Page 6 of6
development of articles,
interviews with press for development of more in-depth reporting,
press conferences,
meetings with public/environmental groups - including meetings on the
settlement of national cases which have generated intense local or national
interest,
speeches before industry groups about actions, and/or
communications with Congressional committees.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG29
Date Signed: October 1,1986
Plan for EPA Implementation of the
Safe Drinking Water Act on Interstate Carrier Conveyance
I. BACKGROUND AND PURPOSE
This guidance outlines EPA's role in implementing the National Primary Drinking Water
Regulations (NPDWR) with respect to interstate carrier water supplies, watering points, and
interstate carrier conveyances and establishes mechanisms to coordinate this role with the Food
and Drug Administration's Interstate Travel Sanitation Program.
Prior to passage of the 1974 Safe Drinking Water Act (SDWA), EPA was responsible
only for certifying water supplies serving interstate carrier conveyances and to do so, enforced
the 1962 Public Health Service Standards with respect to these supplies. The Food and Drug
Administration had regulatory authority over the watering points (WPs) and the conveyances and
enforced these regulations through the Interstate Travel Sanitation Program. However, after the
Safe Drinking Water Act was signed into law, EPA's role in assuring the protection of persons
traveling on board interstate carrier conveyances (ICC) broadened to include not only regulation
of public water systems serving ICCs, but also regulation of the potable water quality on board
the conveyances, [SDWA Part B Sec. 1411(4)].
NPDWR apply to carrier conveyances which convey passengers in interstate commerce
(Section 141.3). These conveyances must meet the requirements of the NPDWR as non-
community public water supplies. In addition, the Implementation Regulations state that while
authority may be granted to States to enforce the NPDWR with regard to all public water
supplies, enforcement authority over public water systems on interstate carriers is specifically
delegated to EPA (40 CFR Section 142.3(b) and the implementation regulations preamble).
There are three elements that comprise the EPA Public Water Supply Supervision
(PWSS) program for the Interstate Carrier Conveyances. The elements are: (1) Interstate Carrier
Water Supplies (ICWS) - public water supply which serves the watering point, (2) Watering
Point (WP) - facility where water is transferred from an ICWS to the interstate carrier
conveyance. These facilities may include water trucks, carts, and water boats, and (3) Interstate
Carrier Conveyances (ICC) - vehicle that transports individuals in interstate
'"Guidance may be updated. Contact Steve Clark at Headquarters for further information
regarding ICC Guidances.
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travel including crew members on board vessels transporting property. Vehicles which do not
provide water to 25 or more individuals for 60 or more days annually are not included in this
program.
II. RESPONSIBILITIES
Program participants essential to the successful implementation of the program include:
(1) ICWS owners and operators, (2) watering point owners and operators, (3) Interstate carrier
owners/operators, (4) Primacy States, (5) EPA Regions, (6) EPA Headquarters, (7) FDA Regions
and Headquarters. The responsibilities of each of the program participants are enumerated
below: ;
1. ICWS OWNERS/OPERATORS
The NPDWRS require all public water systems to comply with the national primary
drinking water regulations. These regulations require public water systems to monitor the quality
of their water and to report results to the primacy agency (the State or EPA Regional office).
Because of the transitory nature of the consumer's exposure to health risks from drinking water
served by ICCs, only the regulation requirements associated with maximum contaminant levels
(MCLs) for those contaminants which pose an acute health threat (based on short-term
consumption) to passengers and/or crew members on board ICCs are applicable to the drinking
water served by ICCs. These include coliform bacteria, turbidity, and nitrate. Since the
monitoring and reporting requirements associated with these contaminants are required of all
public water systems there are no additional monitoring or reporting requirements imposed on
ICWSs in comparison to any other public water system.
2. WATERING POINT OWNERS/OPERATORS
(a) Watering point owners/operators are required to ensure that the source
water used meets the NPDWRs and that the handling procedures used to
transfer this water to the carrier do not degrade the quality of the water.
(b) There are no routine EPA required monitoring or reporting requirements
associated with watering points.
(c) WP owners/operators are required to notify FDA whenever they change
ICWS.
3. INTERSTATE CARRIER OWNERS/OPERATORS
(a) Non-community public water systems ICCs are required to analyze for
coliform bacteria each calendar quarter, take daily turbidity samples, (if
using a surface water source), and analyze nitrate samples as required by
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the primacy agency.
ICC owners/operators may upon approval from EPA, substitute a regular
water system operation and maintenance (O&M) program for each vehicle
or vessel in lieu of the required monitoring. However, this option is not
applicable to conveyances that:
(1) Take raw water on board and treat it for potable use;
(2) Provide additional treatment of water from an approved watering
point. For the purpose of this guidance, additional chlorination or
the use of activated carbon filtration applied to water does not
constitute additional treatment.
(b) If a carrier is notified by FDA that a watering point that serves it vehicles
of vessels is use-prohibited, the holding tanks of each conveyance last
served by that WP must be immediately removed from service and
disinfected prior to being placed back in service.
(c) If a carrier's owners/operators choose to institute a regular operation and
maintenance program (O&M) in lieu of routine monitoring they are
required to submit for approval a detailed explanation of their proposed
O&M program to the appropriate EPA Regional office which serves the
State in which the carrier is headquartered.
(d) ICCs using an O&M program in lieu of monitoring must maintain a log
for each conveyance. The log must accurately record the maintenance
procedure used, when it was accomplished and the name of the employee
performing the maintenance. At the end of each calendar year, a summary
report must be submitted to EPA for each conveyance indicating the
maintenance procedures used, and their frequency. Attachment 1 shows
the form and information required.
(e) Conveyances which clearly do not provide piped water for human
consumption may receive a waiver from coverage under
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the NPDWR. ICCs which desire a waiver must provide a written request
to EPA. As part of this request, they must certify that each water tap has
been removed or is placarded to indicate that the water is not to be used
for drinking. (Minimum placarding requirements are provided in
Attachment 2).
(f) In the event an MCL is exceeded,the conveyance owner/operator must
notify the EPA Regional office in which the conveyance's headquarters is
located and immediately notify passengers and crew of the potential
violation by placarding the water taps on the conveyance. Failure to
monitor water quality aboard the ICC or properly perform O&M
procedures approved by the EPA Regional office also constitutes a
NPDWR violation.
4. STATES
(a) Under the SDWA, States with primary enforcement authority implement
the NPDWR for all public water supplies, including interstate carrier water
supplies.
(b) , Primacy states are requested to notify EPA Regional offices within 48
hours of all "acute" violations (coliform bacteria, turbidity and nitrate) of
the SDWA or any sample results which indicate a potential violation could
exist.
(c) Primacy states are requested to assist EPA to maintain an inventory of
ICWS by helping to identify ICWS in the FRDS inventory.
(d) Primacy states are requested to provide EPA Regional offices with
information about each new water system that will serve an ICC watering
point. Desired information includes bacteriological, turbidity and nitrate
analysis results, compliance information and system capability to meet the
demand likely to result from the WP.
5. EPA REGIONS
(a) Maintain an accurate inventory of all active ICWs and ICC watering points
located in the states they serve and an inventory of all ICCs headquartered
in the states served by the Region.
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(b) Ensure that all ICCs headquartered in the region are aware of their
obligation to provide safe drinking water under the SDWA and the
required monitoring or O&M procedures.
(c) Ensure that each ICC headquartered in the region complies with the
monitoring and reporting requirements for each conveyance that are
applicable to non-community public water systems or complies with an
EPA approved O&M plan including reporting of O&M accomplishments.
(d) Evaluate and where appropriate, approve O&M plans for each carrier
headquartered in the region that elects to institute O&M procedures in lieu
of monitoring. (Minimum criteria for ICC O&M plans are provided in
Attachment 3).
(e) Perform random checks of water quality supplied to passengers and crew
members on board ICCs operating within the region.
(f) Establish mechanisms to ensure that ICWSs not in compliance with
NPDWRs are prevented from serving ICC watering points and coordinate
with regional FDA offices to ensure ICCs are properly informed and do
not service carriers from use-prohibited WPs.
(g) Establish procedures to ensure that carriers remove from service ICC
water systems found to be contaminated.
(h) Initiate enforcement actions for ICCs (1) found to distribute water the
quality of which does not meet applicable NPDWR maximum
contaminant levels, (2) which do not perform O&M in accordance with
plans or (3) which do not monitor or report in accordance with NPDWRs
applicable to non-community public water systems or alternative O&M
procedures approved by the Region.
(i) Submit an annual report of Regional ICC activities to EPA HQ.
(j) Provide, upon request, technical assistance to ICC owners/operators.
(k) Coordinate ICC activities with FDA Regional offices and notify FDA
regional offices of any ICWS that violates NPDWRs.
(1) Make available to the public, the results of ICC water quality sampling and
O&M accomplishments verifications.
(m) Provide information to FDA on ICWSs for new watering points.
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ICC PROGRAM ANNUAL REPORT REQUIREMENTS
The annual ICC report is to summarize the status of all ICWS and ICCs in each EPA
region. The report covers all regional ICC activities and compliance statistics and is to be
submitted to HQ EPA by the end of the first month following the end of each FY. Each Regional
report is to contain:
(a) Name, mailing address and phone number of the regional ICC program
officer;
(b) Updated inventory of all ICWs;
(c) Summary of ICWSs with NPDWR violations;
(d) Inventory of ICCs headquartered in the region showing compliance status
of each, type of program in use by the ICC (monitoring, O&M or
waivered), and a summary of enforcement actions taken for ICCs not in
compliance with requirements; and
(e) Summary of the results of any random ICC water quality sampling and
analysis conducted by our under auspices of the Regional office.
6. EPA HEADQUARTERS
(a) HQ EPA will furnish HQ FDA with an annual report of the compliance
status of all ICWSs.
(b) Annually, HQ EPA will compile and provide to HQ FDA a national report
of ICC MCL and O&M plan violations and enforcement actions taken by
EPA Regional offices.
(c) HQ EPA will receive from HQ FDA and distribute to EPA regions, lists of
all FDA approved, provisionally approved and use-prohibited watering
points.
7. FDA
(a) FDA Regional offices will notify the headquarters of interstate carriers
whose conveyances utilize watering points served by ICWS that are in
violation of NPDWRs.
(b) FDA Regional offices will notify specific conveyances of ICWS NPDWR
violations and may prohibit ICC use of a watering point served by ICWSs
in violation.
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(c) FDA Regional offices are responsible for inspecting all WPs. If any
conditions are found to be unsatisfactory under RDA regulations, FDA
may prohibit ICCs from using the WP found to be unsatisfactory. FDA
will have the responsibility for watering point inspections and any
monitoring in association with these inspections.
(d) FDA will initiate enforcement action against WP owner/operators for
violations of FDA's regulations and provide EPA with an annual inventory
of all acceptable WPs.
(e) HQ FDA will provide technical assistance and enforce their regulations
regarding design, construction, operation, and maintenance as it relates to
the facilities on board ICCs.
(f) HQ FDA will have responsibility for plan review and construction
inspection of conveyance water systems.
III. NEW INTERSTATE CARRIER WATER SUPPLIES
Each watering point is required by FDA regulation to be registered with and inspected by
FDA. Each watering point manager is required to notify FDA whenever it is proposed that a new
source of water be provided at a watering point. In this situation, the EPA Regional office is
responsible for providing information to the FDA Regional office for any new source supplies,
designated by FDA Regional office for any new source supplies, designated by FDA, serving
existing or new interstate carrier watering points. To meet this requirement, the EPA Regional
office may request the State with primacy to provide appropriate information about the system
including, but not limited to, bacteriological and turbidity monitoring results of the past 12
months, results of the last nitrate analysis compliance status and the system's capability to meet
the additional demand. The EPA Regional office will obtain this information in non-primacy
States. Based on this information, the EPA Regional office will make a recommendation to the
FDA Regional office as to whether or not the system is acceptable for use as an ICWS.
EPA INTERSTATE CARRIER CONVEYANCE
SUMMARY REPORT
(1) EPA Log Number.
(2) Type of Conveyance (airplane, train, bus, ship).
(3) Company Name.
(4) Conveyance Serial Number.
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WSG29
(5) Date of all Water System Maintenance.
(6) Address of Conveyance Maintenance Area Where Maintenance is Performed (airport,
train station, bus terminal, port - include city and state).
(7) Maintenance Procedure Used (describe in detail).
(8) Name of Maintenance Employee (signature).
8
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WSG29
PLACARD REQUIREMENTS
(a) 14" x 7" wood or plastic board
(b) 1/2" letters stating "wash water only-unfit for human consumption" or use of an
international type picture. No drinking for use where passengers do not speak English.
Show a picture of someone drinking with a line through the picture.
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WSG29
APPROVAL CRITERIA FOR ICC Q&M PLANS
This plan should be considered as guidance for evaluating the Operation and Maintenance
(O&M) plans as a replacement for the quarterly bacteriological analysis. The following has been
developed from our discussions with the Interstate Carrier Conveyance (ICC) industry and is
presented for your reference.
An acceptable practice for flushing and disinfecting the drinking water systems on board
the conveyance has been described as follows:
(1) Open all taps and completely drain water from the conveyance water tanks.
(2) A chlorine solution is fed into the conveyance water system until 100 ppm of total
residual is read at all taps.
(3) The above system is allowed to stand at least an hour and then is drained through
all taps until completely empty.
(4) The system is then refilled with drinking water from an approved source and
allowed to overflow for two minutes.
Since the O&M program is an option to be exercised in lieu of the requirement for
quarterly microbiological monitoring, the flush and disinfection procedures for on-board systems
shall be applied at least quarterly. The water service vehicles which are used to load drinking
water on the conveyance shall be included in the O&M program. Such vehicles shall be flushed
and disinfected at least once a month. In the event that this O&M procedure causes a significant
adverse effect on the conveyance operator resources, the EPA Regional offices may modify this
requirement. It is the responsibility of the conveyance operator to demonstrate that modification
of O&M procedures will not adversely affect the quality of drinking water on-board. If high
bacterial Standard Plate Counts (SPC) are found to exist during any routine sampling, (more than
500 organisms/ml), the Region should review the carrier's O&M program and consider revising
the flushing and disinfecting procedures to an interval that consistently reduces SPC below 500
colonies per ml.
Where field tests reveal the absence of chlorine residuals in the drinking water aboard
ICCs, the Region should review the carrier's O&M program and consider revising the flushing
and disinfecting procedures to ensure the presence of a chlorine residual as a minimum
requirement.
The records associated with the O&M procedures shall be maintained by the conveyance
operator for five years. This determination is predicated on the National Interim Primary
Drinking Water Regulations Section 141.33 - Record Maintenance.
10
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WSG29
APPROVAL CRITERIA FOR ICC O&M PLANS, (cont'd.)
The aforementioned example of an acceptable flushing and disinfection procedure is not the only
procedure that should be considered acceptable. All procedures submitted by conveyance
operators, including alternate disinfectants, should be considered on an individual basis.
Conveyance operators are responsible for providing proof of the adequacy of their plans,
including information on the toxicity of alternate disinfectants to humans. Recommendations on
the acceptability of such disinfectants shall be provided by EPA, ODW Headquarters, upon
request from the Region. If the conveyance's onboard drinking water system or water service
vehicle water system is in any way serviced or repaired, the system shall be flushed and
disinfected prior being returned to service.
The documentation describing the O&M plan which is submitted by the conveyance
operator should contain the following:
(1) A cover letter which includes a summary of the water handling procedures and
O&M program documentation. Included in the summary should be estimated
time interval for service of conveyance drinking water system; a brief description
of the disinfection procedures; and a description of intended annual report data.
(2) Actual detailed documentation of the disinfection procedures (i.e. excerpts from
maintenance manuals and examples of maintenance inspection forms).
(3) Procedure for on-board water treatment. If carbon filters are employed on a
conveyance, a description of operating procedures is required. The description
should indicate filter capacity, estimated flow rate, service interval, chlorine
residual of water used to charge on-board system and whether water is chlorinated
by operator.
The approval of the O&M plans shall have a term of one year, initially. At such time
when program experience demonstrates, the approval period may be altered.
Approval of the O&M plans is the responsibility of the Regions. Assistance from
Headquarters is available on request. Any significant deviation from the O&M requirements of
this guidance should be discussed with Headquarters prior to approval by Regions.
11
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WSG29
ICCs Using Approved ICWs and Watering Points
Monitoring and Reporting Requirements
ICC
Owners
Operators
Waiver Written
Request to EPA
Regional Office
No Drinking Facilities
No Culinary Water
Placard Taps
Bottled Water
EPA inspections
and Reports as
Required
Lab Notify ICC
Immediately
ICC will Initiate
Corrective Action
and Notify EPA
Immediately
Negative
Report to EPA
In 40 Days
Operation
and
Maintenance
Program
Report to EPA
Regional Office
Annually on
Procedures and Records
EPA
Inspections
12
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG30
Date Signed: February 20,1987
MEMORANDUM
SUBJECT: Availability of Exemptions under Section 1416(b)(2)(A) of SDWA, as amended,
(40 CFR 142.55); Information Memorandum
FROM: Michael B. Cook, Director
Office of Drinking Water (WH-550)
TO: Regional Water Supply Branch Chiefs
Regions I-X
EPA is about to issue a "Final Codification Rule." This rule will amend the existing
drinking water regulations (40 CFR Parts 141,142, and 144), to reflect changes engendered by
the 1986 Amendments to the Safe Drinking Water Act. The Codification Rule includes variance
and exemption sections, among others. The Variance and Exemption (V&E) Work Group has
been tasked with revising the guidance for the issuance of variances and exemptions, originally
issued in May, 1979. The purpose of this memo is to inform you of our action plan for guidance
development, summarize what it will encompass, and discus one V&E issue on which several
Regions .requested clarification.
I propose to have a rough first draft of the guidance available for discussion at the
ASDWA Board meeting in San Diego, CA, on February 24,1987. After addressing any issues
that arise at the meeting, and incorporating any comments, we will send you a draft guidance for
review and comment by late March. Once comments are received and addressed, we will
develop the final guidance. Our goal is to issue the final guidance by July.
Briefly, the guidance will contain a preface and five main sections. The first section will
summarize conditions for granting variances and exemptions. The second section will delineate
economic factors for granting exemptions and will include guidelines for determining
affordability. The third section will include guidelines for determining unreasonable risk to -
health, and the last two sections will include variance and execution procedures and guidance on
compliance agreements.
A number of Regions have requested clarification on the issue of the "one year window
of opportunity" to receive an exemption from an existing MCL. The statutory language in
section 1416(b)(2)(A)(i) states that a schedule for compliance with an exemption from an
existing MCL must require compliance "...not later than 12 months after enactment of the SDWA
Amendments of 1986," (i.e., June 19,1987).
*May need to be updated to reflect new V&E rule.
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WSG 30
Section 1416(b)(2)(B), however, allows the final date for compliance to be extended "...for a
period not to exceed three years after the date of the issuance of the exemption" (except that
exemptions for small systems may be renewed for one or more additional two-year periods).
There are three possible interpretations of the "window" available to EPA/Status in
granting exemptions:
1. An exemption may be granted only until June 19,1987; the exemption must
require compliance before June 19,1990 (except for small systems).
2. An exemption may be granted at any tune until June 19,1990, as long as it
requires compliance by June 19,1990 (except for small systems).
3. An exception may be granted at any time, as long as it requires compliance within
three years of issuing the exemption (except for small systems).
I believe Congress intended to put a cap on exemptions from existing standards. If
EPA/States could grant an exemption from these standards at any time, as long as it requires
compliance within three years of issuing the exemption (i.e., interpretation 3), it would render the
June 19,1987 date meaningless. Also, Congress assumed that all interim standards would be
revised by the June 19,1989 deadline in section 1412 so exemptions for interim MCLs would no
longer be necessary.
After considering the remaining two interpretations, I have decided that number 2 (i.e., an
exemption may be granted to a system in violation of any existing interim MCL at any time until
June 19,1990, as long as it requires compliance by June 19,1990, except for small systems) is
the more practicable of the two interpretations. This gives the primacy agency feasibility by
allowing it to grant exemptions at any time until June 19,1990, As noted above, this exemption
guideline applies to existing MCLs only (including fluoride).
The guidance for the issuance of variances and exemptions, will contain more detailed
information concerning the above approach. In general, primacy agents should be advised to
exercise caution in granting exemptions to public water supplies with a history of unresolved ,
major violations of existing standards.
If you have any questions on the issuance of exemptions or have other issues that require
clarification, please contact John Trax at 382-5526. Other questions related the contents of the
guidance document may be directed to John or to Craig Vogt, at 382-7575.
cc: Meg Silver
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WSG31-40
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG 31
Date Signed: March 31,1987
MEMORANDUM
SUBJECT: Guidance for the FY 1988 State/EPA Enforcement
Agreements Process
FROM: A. James Barnes (signed by James Barnes)
Deputy Administrator
TO: Assistant Administrators
Associate Administrator for Regional Operations
Regional Administrators
Regional Counsels
Regional Division Directors
Directors, Program Compliance Offices
Regional Enforcement Contacts
State/EPA Enforcement Agreements negotiated between EPA Regions and States
continue to be one of the mechanisms we are relying upon to ensure that compliance and
enforcement efforts are strong and effective nationwide. This year's guidance does not include
any new directions; rather, it emphasizes areas where further attention to existing guidance may
be needed. In particular, the Regions need to focus on fully implementing the FY 1986 revisions
to the Policy Framework with respect to oversight of State penalties and the involvement of the
State Attorneys General in the process, as well as last year's guidance on reaching understandings
with the States on Federal facility compliance issues. The status reports on the FY 1987
Enforcement Agreements submitted by the Regions in October indicated a great deal of variation
among programs within a Region and across Regions on the extent to which these areas were
addressed.
The recently issued report on the Implementation of the Timely and Appropriate
Enforcement Response Criteria, also highlights some areas needing increased attention by
Headquarters program offices, Regions, and States. I encourage you to read this report and work
closely with the program offices on ways to improve Regional and State performance and '
tracking of violations and enforcement follow-up. I plan to discuss each Region's performance in
implementing the timely and appropriate guidance as part of my semi-annual regional visits. I
also have asked the program offices to continue to diligently implement and oversee this
guidance as part of their ongoing management systems and regional reviews.
*Note: May need to be updated.
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WSG31
In an effort to improve enforcement planning, OECM recently developed, with the
program offices, summaries of enforcement priorities for each program based on the results of
strategic planning sessions with the program offices and the FY 1988 Operating Guidance.
These summaries were provided to assist in developing operating plans among Regional program
divisions, Regional counsels, and Environmental Service Divisions, and to accommodate any
shifting emphasis in case selection, inspection targeting, etc. The Regions may also wish to use
these summaries and the results of their internal planning sessions to facilitate State/EPA
meetings on enforcement priorities as part of the development and negotiation of the
Enforcement Agreements, as recommended in the revised policy framework.
I remain firmly committed to full and effective implementation of the policy framework
and am relying on your continued personal attention to this important effort.
Attachments
cc: Steering Committee on the State/Federal Enforcement
Relationship
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WSG31
ATTACHMENT 1
GUIDANCE FOR IMPLEMENTING THE FY 1988 ENFORCEMENT AGREEMENTS
PROGRESS
Refining the Existing Agreements Process
Changes to the national guidance continue to be kept to a minimum. All new or amended
guidance documents applicable to the FY 1988 enforcement agreements process are identified in
Attachment 2.
The Agreements are multi-year blueprints for guiding State/Federal enforcement.
However, they should be reviewed each year with the States and amended if any problems have
arisen or new guidance has been issued. Regions should continue to improve the
integration/linkage of the enforcement agreements into existing documents and processes to the
extent possible, to avoid duplication and ensure that the enforcement agreements are part of
ongoing management and oversight systems.
Finally, as again highlighted in the Performance-based Assistance Policy study this year,
Regions need to pay attention to improving the way in which they oversee State programs so that
our oversight is constructive and supportive of strong State programs.
Achieving Timely and Appropriate Enforcement Response
The FY 1986 end of year report on the implementation of the Timely and Appropriate
Enforcement Response Criteria, prepared by the RCRA,'Air, and NPDES programs and
coordinated by OECM, gave us some hard data on how well that part of the guidance is being
implemented. EPA and the States have made a good start in implementing the guidance and the
guidelines are generally having a favorable impact. However, the performance varies widely by
program. One of the key indicators of success is the extent to which the timeframes have been
incorporated into the ongoing management and accountability systems by the Regions and States
so that the guidance can be used as intended as a management tool.
In an effort to integrate timely and appropriate guidance with the Agency's management
systems, the RCRA program, beginning in FY 1987, has a reporting measure to track the
timeframes for SNCs in the beginning of year universe.
It is expected that the programs that did not prepare a report this year (PWSS, UIC,
FIFRA, and TSCA) will be incorporating into their management systems the capability for
assessing the implementation of their timely and appropriate guidance.
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WSG31
For FY 1987 and 1988, the UIC and PWSS programs will have an Exceptions List
system, similar to the approach successfully used by the NPDES program.
Regions and States should closely monitor the implementation of the criteria to make sure
that sources subject to the guidance are properly identified and made part of the system and that
adequate tracking and follow-up systems are in place.
The report highlighted that the State performance in assessing required penalties lags
behind EPA's. The Regions need, to work with their States on improving their use of penalty or
sanction authorities, consistent with program guidance.
The report also looked at the level of EPA direct enforcement action hi
delegated/approved States. Although the guidance has made it clearer when EPA should take
direct action, for the partnership to work in the long term, it is important for the States to be
committed to taking the enforcement actions, rather than using the guidance to pass cases to
EPA. Regions need to work with their States to explore how the direct enforcement criteria are
working and how to most effectively use our scarce resources.
Finally, the Deputy Administrator and each program office will review each Region's
performance hi meeting the timely and appropriate guidance as part of the scheduled regional
visits and reviews.
Improving the Use of Penalty Authorities
Regions need to continue to work with the States on improving the use of penalties and
other sanctions. Regions should establish how and when the State generally plans to use
penalties and other sanctions, with the State committing to obtain a penalty or sanction where
appropriate, according to program guidance. The Regions should also discuss with the State
their approach to calculating penalties and agree on appropriate documentation to support general
oversight. Just as the Headquarters program offices will be strengthening their oversight of the
Region's penalty practices, Regions should pay particular attention this year to enhancing the
oversight of the State penalty practices, in the context of the overall enforcement program.
Regions should continue to encourage States to develop civil administrative penalty authority
and should support them in this effort.
Involving the State Attorneys General
Based on reports to date on the FY 1987 process, it appears that only modest change has
occurred in the State agency's involvement of the State AG's or other appropriate legal
organizations in the enforcement process.
Regions need to continue to work with the State agencies on improving the
communications between the agencies and State AGs to assure that State AGs are properly
notified and consulted about planned Federal enforcement actions.
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WSG31
Regions should encourage the States to commit advance notification and consultation
protocols to writing and seek to incorporate these written protocols into the State/EPA
Enforcement Agreements.
Regions are strongly encouraged to work with the Sate agencies on planning a joint
meeting with all parties (program and legal staffs of EPA and State agency, plus U.S. Attorney
and State AG staff) to review EPA's enforcement priorities and recent program guidance. The
summaries of the enforcement priorities for FY 1988 for each program should facilitate this
effort.
The National Association of Attorneys General (NAAG) is currently surveying the State
AGs about their involvement in the Enforcement Agreements process, as set forth in the revised
policy framework of 1986. The results of the survey should be available mid-May and Regions
and States are encouraged to use these results to make further improvements in implementing the
policy framework in this area.
Clarifying the Involvement of States in the Federal Facilities Compliance Process
Although the Federal Facilities Compliance Strategy was not finalized in FY 1986 as
planned, most Regions attempted to address some aspect of Federal facilities compliance in the
FY 1987 agreements.
Regions should continue to address the following areas and incorporate into the
agreements, as appropriate, understandings reached with the States on:
Enforcement approach the State generally plans to use for responding to Federal
facility violations;
Types of situations where the State would request EPA support or direct action;
Any additional information the State has agreed to report to EPA on Federal
facilities compliance and enforcement activities;
How the State -will be involved in the A-l 06 process; and
Plans for joint EPA/State annual review of compliance problems at Federal
facilities in the State.
Regions are encouraged to involve the Federal Facilities Coordinators in the development
and negotiation of this aspect of the enforcement agreements.
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WSG31
FY '88 DEFINITION OF SIGNIFICANT NONCOMPLIER fSNQ
A Significant Noncomplier (SNC) is a community water system which meets any of the
following criteria:
(1) violates the microbiological MCL for four or more months during any 12
consecutive month period, or
(2) violates the turbidity MCL for four or more months during any 12 consecutive
month period, or .
(3) is a "major" violator of the microbiological monitoring or reporting requirements
for 12 consecutive months, or
(4) is a "major" violator of the turbidity monitoring or reporting requirements for 12
consecutive months, or
(5) is a "major" violator of the TTHM monitoring or reporting requirements for 12
consecutive months, or
(6) violates the microbiological MCL px is a "major" violator of the microbiological
monitoring requirements for a combined total of 12 consecutive months, or
(7) violates the turbidity MCL or is a "major" violator of the turbidity monitoring
requirements for a combined total of 12 consecutive months, or
(8) exceeds the level for any regulated inorganic, organic (excluding TTHM), or
radiological contaminant, prescribed in guidance above which exemptions may
not be issued, or
(9) exceeds the level for TTHM, prescribed in guidance above which exemptions may
not be issued, for two or more annual averages during the year, or
(10) fails to monitor for, or report the results of, any one of the currently regulated
inorganic, organic (other than TTHM), or radiological contaminants since the
Federal requirements for that contaminant became effective (June 24,1977), or
(11) violates a requirement of a written, and bilaterally negotiated compliance
schedule.
A "major" violator of a monitoring or reporting requirement is a system which fails to
take any samples for a particular contaminant during a compliance period, or where the system
has failed to report results of the analyses to the primacy agent for a compliance period. (If the
agent receives no monitoring report or receives a report indicating that no monitoring was
conducted, the monitoring violation is classified as "major").
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WSG31
Attachment 2, Page 1 of 2
Revised: 3/23/87
EXISTING OR PLANNED NATIONAL GUIDANCE AFFECTING STATE/EPA ENFORCEMENT AGREEMENTS PROCESS
Cross-cutting National Guidance:
Revised Policy Framework for State/Federal Enforcement Agreements — reissued 8/26/86
Agency-wide Policy on Performance-Based Assistance — issued by Admin. 5/31/85
Annual Guidance for the FY 1988 Enforcement Agreements process — issued by DA by April 1. 1987
NOTE: Underlining represents guidance still to be issued.
Water-NPDES
Drinking Water
Air
RCRA
FIFRA
Fed. Fac.
• National Guidance for
Oversight of NPDES Programs
1987 to be issued 4/18/87
• Final Regulation Definition of
Non-Compliance reported in
QNCR 8/26/85)
• QNCR Guidance (issued
3/86)
• Inspection Strategy and
Guidance (issued 4/85)
• Revised EMS Enforcement
Management System (issued
3/86)
• NPDES Federal Penalty
Policy (issued 2/11/86)
• Strategy for issuance of
NPDES minor penalty
• "FY 85 Initiatives on
Compliance Monitoring &
Enforcement Oversight"
(6/29/84)
• "Final Guidance on PWS
Grant Program
Implementation" (3/20/84)
• "Regs-NIPDWR,40CFR
Part 141 and 142
• DW Annual Reporting
Requirements - "Guidance for
PWSS Program Reporting
Requirements" (7/9/84)
• "FVs 85-86 Strategy for
Eliminating Persistent
Violations at Community
Water Systems" Memo from
Paul Baltay, 3/18/85
• "Guidance for the
Development of FY 86 PWSS
State Program Plans and
Enforcement Agreements"
(issued 7/3/85)
• "Timely and Approp.
Enforcement Guidance"
(issued 6/28/84; reissued
4/11/86): System
Guidelines for FY 1986
(issued 2/86)
• "Guidance on Federally-
Reportable Violations"
(4/11/86)
• Inspection Frequency
Guidance (issued 3/19/85
and reissued 6/11/86)
• Final Technical
Guidance on Review and
Use of Excess Emission
Reports" Memo from Ed
Reich to Air Branch Chiefs
— Guidance for Regional
Offices (issued 10/5/84)
• "Interim National Criteria
for a Quality Hazardous
Waste Management Program
under RCRA" (reissued
6/86)
• "RCRA Penalty Policy"
(5/8/84)
• FY 1987 "RCRA
' Implementation (issued
5/19/86) (to be revised by
4/1/87)
• "Compliance and
Enforcement Program
Descriptions in Final
Authorization Application
and State Enforcement
Strategies," memo from Lee
Thomas to RAs
• Final FY 88
Enforcement &
Certification Grant
Guidance (issued 3/10/87)
• Interpretative Rule—
FIFRA State Primacy
Enforcement
Responsibilities 40 FR Part
173 1/5/83
• Final TSCA grant
guidance for the
cooperative agreement
States (issued 3/10/87)
• FF Compliance
(Strategy to be issued)
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WSG31
Attachment 2
Page 2 of2
NPDES
Drinking Water
• "Guidance on FY 86 UIC
Enforcement Agreements"
ICPG #40 (issued 6/28/85)
• "FY 87 SPMS & OWAS
Targets for the PWSS
Program" (SNC definition)
(issued 7/10/86)
• Guidance on FY 88 UIC
Enforcement Agreements (to
be issued 4/l/87>
• Guidance on FY 87
PWSS Enforcement
Agreements (issued 8/8/86)
• Guidance on Use of AO
Authority under SDWA
Amendments (issued
1/20/87)
• FY ** UIC Reporting
Guidance (to be issued
4/1/87^
• UIC SNC Definition
(issued 12/4/86)
• PWS Compliance
Strategy (to be issued
4/1/87^
• Guidance on PWS FY 88
Enforcement Agreements (to
be issued 4/1/87^
Air
• "Technical Guidance on
the Review and use of Coal
Sampling and Analysis
Data" EPA-340/1-85-010
(10/30/85) Guidance for
Regional Offices
• Class B VOC Source
Compliance Strategy (to be
issued April. 1987)
RCRA
FIFRA
Fed. Fac.
• Compliance Monitoring
& Enforcement Log - form
for recording monthly
compliance data from States
& Regions
• Technical Enforcement
Guidance on Ground Water
Monitoring (Interim Final
Aug. 1985)
• Compliance order
Guidance for Ground Water
Monitoring (issued Aug. 85)
• Loss of Interim Status
Guidance (issued Aug. 85)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG31A
Date Signed: June 16,1987
MEMORANDUM
SUBJECT: Guidance for FY 1988 PWSS Enforcement agreements
FROM: Lawrence J. Jensen (signed by Lawrence Jensen),
Assistant Administrator
for Water (WH-556)
TO: Regional Water Division Directors
Regions I - X
I. Purpose
The purpose of this memorandum is to provide guidance to Regional offices in
concluding FY 1988 enforcement agreements with States which have primary enforcement
responsibility for their Public Water System Supervision (PWSS) programs.
II. Background
The Deputy Administrator has issued guidance for the FY 1988 enforcement agreement
process. That guidance states that no NEW directions are being identified. Rather, this year's
Agency-wide guidance emphasizes improvements and refinements in selected areas of the
process as set forth in the policy framework, especially in:
• oversight of State penalties;
• effective involvement of State Attorneys General; and
• enforcement against Federal facilities.
III. Guidance
Regions are to follow the Deputy Administrator's guidance (copy attached) in concluding
or revising enforcement agreements for PWSS programs. In addition, I request that you
incorporate certain program specific priorities:
• Revised Definition of Significant Non-Compliance fSNO. The SNC definition
for the PWSS program was recently revised. The revised definition is attached for
your convenience. Please ensure that this definition is used in FY 1988.
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WSG31A
• Quarterly Compliance Conference. Most Regions are already holding
conferences to review compliance status with their States. This is an excellent
mechanism which enables Regions to clarify the systems that are truly SNCs and
identify potential candidates for Federal enforcement action. Such quarterly
conferences should be used by all Regions with primacy States, and should be
formally incorporated in the enforcement agreements.
• Timely and Appropriate Enforcement. The definition of appropriate enforcement
actions and the milestones for taking action are not changed for FY 1988. The
program is committed to full implementation of the timely and appropriate
enforcement system. This system was further strengthened by the passage of the
Safe Drinking Water Act Amendments of 1986. The Amendments which give
EPA the authority to issue administrative orders, direct EPA to take an
administrative action whenever the Administrator finds that a system does not
comply with a primary regulation under Section 1412 of the Act.
Systems hi significant non-compliance, for which the State has taken no action or
an inappropriate action, will remain the primary focus of Federal oversight and
direct Federal action. However, non-compliance other than SNC should be
considered for Federal oversight and action. To ensure appropriate enforcement
of these areas of non-compliance, the Regions must work closely with the States.
Together the Region and State should map out what level of State response is
appropriate for each type of non-compliance, and when and how EPA will take
action to ensure that a strong enforcement presence is felt throughout the
regulated community.
The State/EPA enforcement agreements should include expectations agreed upon
for both State and Federal responses. In addition, effective protocols for
discussion, advance consultation, and notification will be critical to ensuring that
a working partnership between Region and State is maintained.
• Compliance Strategy. A revised compliance strategy for the PWSS program was
issued on March 31,1987. A copy has been sent to you under separate cover.
Regions should ensure that the principles of the revised strategy are implemented.
In particular, each primacy State should commit to following the guidance
contained in the compliance strategy.
It is not my intention to require Regions and States to expend large amounts of resources
revising existing enforcement agreements when no major changes are required. For example, in
States which have instituted a formal process for developing and refining these agreements and
have them signed at high levels of state governments, revising agreements is a cumbersome
process. Therefore, if the existing enforcement agreements comply with the intent and the major
thrust of this guidance such that significant changes are not required, they may be left as they are.
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WSG31A
Specific priority items referred to in this guidance may be incorporated into other documents as
appropriate. I am concerned with achieving our 1988 program priorities, not with the particular
document in which an item appears.
IV. Addresses
Any questions concerning this guidance should be addressed to Chet Pauls (382-5550) of
the Drinking Water Branch, State Programs Division.
Note: Attachment could not be located. For more information, please contact the EPA staff
person mentioned in the document.
*Note: May need to be updated.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 32
Date Signed: April 23,1987
Honorable Jack Fields
House of Representatives
Washington, D.C. 20515
Dear Mr. Fields:
I am responding to your letter of March 26,1987, hi which you requested answers to
several questions posed by Mr. John Collins about the lead ban provisions in the Safe Drinking
Water Act (SDWA) Amendments of 1986 (P.L. 99-339). My response will answer each question
as posed by Mr. Collins.
1) "Is the law now hi effect? I have been told that the law will be in effect hi June
1988."
The law is in effect now. After June 19,1986, (the effective date of the SDWA
amendments) any solder, flux, and pipe used in the installation or repair of any
public water supply system, or hi any plumbing in a residential or non-residential
facility providing water for human consumption which is connected to a public
water supply system must be "lead free." "Lead free" means that solder and flux
may not contain more than 0.2 percent lead and pipe may not contain more than
8.0 percent lead. The States must enforce this requirement within two years (June
19,1988).
2) "Who will enforce the law, and what are the penalties for noncompliance?"
As explained above, all States must have a mechanism in place to enforce this
prohibition by June 19,1988. It is up to each State to decide how best to
implement this requirement. Penalties for noncompliance will be a function of
each State's laws and regulations, hi addition, beginning June 19,1988, the
Department of Housing and Urban Development and the Veterans Administration
may not provide mortgage insurance or other assistance for new residential
property unless the plumping is "lead free." Also beginning June 19,1988, solder
which has lead content in excess of 0.2 percent must prominently display a
warning label that the use of that solder in making joints or fittings hi any private
or public potable water supply is prohibited.
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WSG32
3) "How will the solder-joints be tested? Whose responsibility is this?"
Several test kits are available to enable inspectors to test for the lead content of
solder joints in the field. It is the responsibility of the State (or local
governments) to ensure that the lead ban provisions are enforced. EPA will
evaluate each State's enforcement program to ensure a lead ban mechanism is in
place and adequately enforced.
4) "What civil liabilities will be incurred if it is proven that lead bearing solder has
been used, and as a result lead poisoning to a human? The above in regards to (a)
the plumbing contractor; (b) the building contractor; (c) the plumbing supply
house which sold the lead bearing solder?"
EPA can only address the responsibilities imposed by the SDWA. Questions
concerning specific product liability are determined by State law. The SDWA
simply bans the use of products that are not "lead free" as defined by the Act. The
SDWA is neutral on the issue of liability. It neither imposes liability nor relieves
individuals of liability for any injury caused by lead bearing products. Of course,
hi determining whether to impose such liability a court may consider whether the
defendant was in compliance with the lead prohibition requirements of the Safe
Drinking Water Act as well as State law implementing the lead ban.
5) "What penalties will be incurred if the State and/or local governments do not
comply with this law?"
If a State fails to enforce the prohibition EPA may withhold up to five percent of
the State's Public Water System Supervision program grant. Any penalties on
local governments will be determined by each State government.
I trust this information will clarify the lead ban provisions of the Safe Drinking Water
Act. I appreciate your questions and welcome any further clarifications you may have.
Sincerely,
(signed for by Rebecca Hanmer)
Lawrence J. Jenson
Assistant Administrator
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG33
Date Signed: August 10,1987
MEMORANDUM
SUBJECT: Supplemental Guidance on the Issuance of Administrative Orders in the PWSS
and UIC Programs
FROM: Paul Baltay, Director (signed by John R. Trax)
State Programs Division
Glen Unterberger (signed by John W. Ryan)
Associate Enforcement Counsel
for Water, OECM
TO: Regional Water Supply Branch Chiefs
Regional Counsels
Last month, pursuant to our policy of reviewing the first three proposed and final
administrative orders (AO) issued by each Region, Region III submitted a proposed AO to
headquarters for our review and comments. This AO was different from any we had previously
reviewed and raised several policy questions. Working together, we have reached an agreement
on these issues and we believe that the issues and their resolution should be shared with all the
Regions. While this AO was issued in the PWS program, the resolutions apply to the UIC
program as well.
The proposed AO was to be issued to a large public water system for violations of the
turbidity MCL. The proposed AO required the system to:
(1) Within 30 days of the effective date of the AO, submit the name of a consultant or
an engineer who had been hired to conduct a feasibility study of the water system
to determine alternatives for achieving full compliance with the requirements of
the Safe Drinking Water Act;
(2) Within 60 days of the effective date of the order, submit copies of any existing
reports or studies that may have been prepared since May 1980, to determine the
safety and reliability of the existing water supply;
(3) Within 120 days of the effective date of the order, submit the results of the
feasibility study. At a minimum the study was asked to propose one of four
alternatives for achieving compliance, for example, design,
1
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WSG33
construction, and operation of a permanent water filtration plant or design,
construction, and operation of a permanent interconnection with another water
system. The feasibility study was required to contain a schedule for obtaining
compliance with the turbidity MCL and the schedule was to include both interim
milestones and a date for final compliance.
(4) Within 60 days of acceptance by EPA or the State agency of the results of the
feasibility study, enter into an enforceable consent agreement which was to
specify a schedule for obtaining compliance with the Safe Drinking Water Act.
(5) Report to EPA monthly on its compliance status and its progress towards each of
the requirements of the AO and to identify any event which caused or might cause
a delay or other noncompliance with the requirements of the AO.
The major policy issues raised by this proposed AO are discussed below:
• Specifying a Time for Compliance
Existing AO issuance guidance states that a "reasonable time for compliance" may be
stated in the findings section of the proposed AO. The "reasonable time" stated or specified is
the time required for final compliance with the MCL or other regulation. It is perfectly
acceptable for EPA to issue a proposed AO specifying a "best guess" date for achieving final
compliance. EPA can refine that "best guess" date in the final order using information obtained
from the system or other parties as part of the public hearing and comment process. In any event,
including a deadline date for final compliance will greatly strengthen the enforceability of the
administrative order.
• Interim Milestones
A date for compliance set in the future due to the need for construction or other
substantial improvements to the system, raises the issue of what assurances EPA has that a
system will take necessary interim steps to come into compliance by the required final date. This
is where interim milestones may be used effectively to help obtain compliance. Setting
milestones may help you to rrionitor the progress of the system in returning to compliance and to
target further Federal action where progress is insufficient.
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WSG33
Whether or not interim milestones would be appropriate or useful depends on the
particular circumstances of the case; for example, how long it will take the system to come into
compliance. Such a determination is best left to the discretion of the Regional office. If you
decide that interim milestones would be appropriate, you should design them from the standpoint
that the more closely they are related to end necessary for achieving final compliance, the more
likely they are to be enforceable. Basically, the milestones should be the steps along the critical
path to final compliance.
You should set out milestones and associated milestone dates hi the proposed AO. Even
if you are not certain of what the exact milestones or dates should be, they should appear in the
proposed AO so that the system, the State, or the public (if there is a public hearing) may
comment upon them. This process allows you to modify the proposed milestones based on the
information you receive as a result of issuing the proposed AO. The outcome of this process
should be a set of milestones which are reasonable and thus defensible.
• Enforceability of Interim Milestones
OECM wishes to counsel that the enforceability of any interim compliance milestones
may be challenged given that the statutory language only expressly authorizes EPA to require
compliance with the statute or regulations. However, OECM recognizes the legitimate interest hi
using schedules with interim milestones to help obtain compliance. Therefore, as we stated
above, the milestones should be as closely related and necessary to achieving final compliance as
possible. This will increase the likelihood that the milestones themselves may be enforceable
independent of any violations of the AO requirement for final compliance (particularly where
EPA can show that missing an interim milestone will clearly result in a system owner/operator
missing the final compliance deadline).
• Requirement to Enter into an Enforceable Consent Agreement
We do not believe that this is an appropriate requirement in an Administrative Order.
The compliance schedule which the Region was trying to obtain by this mechanism will be set
out in the proposed AO for comment by the system, the State, and the public, as discussed above.
• Monthly Reporting Requirement
We have advised the Region that this is an appropriate mechanism for tracking the
actions the system is taking to return to compliance.
We hope that this guidance is helpful to you. If you have any questions, please contact
Patricia Mott, OECM at FTS 475-8320 or Betsy Devlin, ODW at FTS 382-2303.
'"Needs to be updated to take out reference to proposed orders.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 34
Date Signed: September 16,1987
MEMORANDUM
SUBJECT: Definition of a Non-Transient, Non-Community Water System
FROM: Paul M. Baltay, Director
State Programs Division (WH-550E)
TO: Regional Drinking Water Branch Chiefs .
Regions I-X
As you know, the recent VOC regulations officially defined a new category of water
systems — non-transient, non-community water systems (NTNCWS). Section 141.2 of the
National Primary Drinking Water Regulations defines a NTNCWS as a public water system that
is not a community water system and regularly serves at least 25 of the same persons over six
months per year (emphasis added). We have recently been asked to further define "regular" as it
appears in the definition.
In our view, "regular" is more of a qualitative than quantitative term. A sizeable portion
of many individual's daily water consumption occurs away from home. Further, in most
instances, this consumption occurs at the same place, from the same water supply for extended
periods of time. If the water being consumed in such cases is being supplied by a non-
community system rather than a community system, a gap in health protection exists. The
NTNCWS category, as noted in the preamble, was conceived to protect individuals from
potential adverse health effects as a result of long-term consumption of water from a non-
residential source. This protection is to encompass schools, day care centers, nursing homes,
institutions such as prisons, factories and offices which provide water to a fixed population of 25
or more people. In addition, other service areas such as hotels, resorts, hospitals, and restaurants
were intended to be covered if they employ more than 25 people and are open six or more
months of the year. Although we're reluctant to define regular service or fixed population in
terms of hours per day and days per week, you probably will be, or have been asked for such a
quantitative definition. We therefore recommend using four hours or more per day, for four or
more days per week, for 26 or more weeks per year as a guideline for the term "regular" as it
relates to NTNCWSs. Our concern hi offering such a definition is that we will all become mired
in numerical games and lose sight of the fundamental intent of protecting health.
Our goal is for States to have completed a good (not perfect) inventory of NTNCWSs by
October 1,1988. We believe this goal can be effectively achieved by reviewing service area
characteristics and populations. Systems which are schools, day care centers, nursing homes,
institutions, factories and businesses with populations of 25 or more would be reclassed as
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WSG34
NTNCWSs. Large hotels, resorts complexes, hospitals, etc., will most likely employ more than
25 people and would be classed as NTNCWSs. Other non-communities can be checked on a
planned schedule (which could extend beyond October 1,1988 if the State has a large number of
NCWSs). States should, however, be able to begin FY 1989 with a reasonably sound NTNCWS
inventory.
The current version of FRDS (15) will accept the NTNCWS designation beginning
February 1,1986. FRDS II will process NTNCWS designations as soon as FRDS II is available.
If there are any objections to these guidelines, please let me know. Otherwise I will
assume that you and the States in your Region are in agreement with our philosophy and goals.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG35
Date Signed: February 23,1988
Note to: PWS Enforcement Coordinators
RE: Procedures for Issuing Complaints for Penalties for Violations of PWS
Administrative Orders
As promised in last week's compliance and enforcement conference call, attached is a
summary of the procedures which must be followed in issuing complaints for penalties for
violations of PWS administrative orders. The complete procedures are contained in 40 CFR Part
22, Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties
and the Revocation or Suspension of Permits.
We suggest that you become familiar with these procedures so that when it becomes time
to issue complaints for penalties you are aware of the steps which must be followed. If you do
not have a copy of 40 CFR Part 22, please call and we will get you a copy.
We plan to discuss these procedures at the March conference call; however if you have
any questions on the rules or the summary, please call me on FTS 382-2303.
Betsy Devlin
(Signed by Betsy Devlin)
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WSG35
Administrative Order Violated or Ignored
Complaint for Penally
Answer [20 days]
Default
• Admits all facts alleged in complaint
• Waives right to hearing
• Proposed penalty due 60 days after
final default order
Settlement Conference Hearing
Consent Order
with penalty
•Potential for accelerated
decision/dismissal
• Interloctory appeals
• Within 20 days of availability of
transcript, submit proposed findings of
fact, conclusion of law, and decrees
Initial decision
No Appeal
Final in 45 days
Penalty due 60 days
from date of final
decision
Appeal of Decision
-Motion to Reopen Hearing-20 days
-Administrator's decision to review-45 days
Administrator's Final Order
I
Payment Due-
60 days from date of
Final Order
Motion to Reconsider
(10 days)
I
Payment due 60 days from final
order unless Administrator
grants stay
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WSG35
PROCEDURES-COMPLAINTS FOR PENALTIES
When respondent violates or refuses to comply with a PWS administrative order,
respondent may be liable for an administratively assessed penalty of up to $5,000 (or a court
assessed penalty of up to $25,000 per day of violation).
The following outlines the procedures which should be followed in issuing complaints for
penalties for violation of PWS administrative orders. Additional details are contained in 40 CFR
Part 22 (Consolidated Rules of Practice). Please note that these procedures cover
administratively assessed penalties only.
Ai Issue Complaint
1. When respondent has violated a PWS administrative order, EPA drafts a
complaint for penalty and the appropriate cover letters following the models
contained in the AO Issuance Guidance.
2. The original and one copy of the complaint are filed with the Regional Hearing
Officer; a copy of the signed original is served on respondent. Service is either
personal or by certified mail, return receipt requested. Service by mail is
considered complete when the receipt is signed.
3. Respondent has a right to request a hearing on any material fact in the complaint
or on the appropriateness of the penalty. The request for a hearing must be hi
writing and filed with the Regional Hearing Officer within 20 days of receipt of
the complaint.
IL Respondent's Answer
1. Respondent must file an answer to the complaint within 20 days of receipt in
order to avoid a default judgement.
2. Answer should admit, deny, or explain each factual allegation in the complaint.
The answer should also state the grounds for any defense, any facts at issue, and
whether or not respondent is requesting a hearing. If respondent neither admits,
denies, or explains an allegation, respondent is deemed to have admitted it.
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WSG35
Hearing
1. A hearing shall be held upon request by respondent of if the Presiding Officer, in
his discretion, believes issues were raised in the answer such that a hearing would
be appropriate.
2. The Presiding Officer will set a date for the hearing and will inform all parties.
Notice of the hearing will be given not less than 20 days before the hearing is
scheduled. A hearing will be postponed only if good cause is shown.
3. The hearing shall be held either in the county where the respondent resides or
conducts business, in the city where the EPA Regional. Office is located, or hi
Washington, D.C.
4. At the hearing, the Presiding Officer will generally admit all evidence not
irrelevant, immaterial, repetitious, or unreliable except any settlement information
(excluded under the Federal Rules of Evidence). Witnesses may be examined and
cross examined; Presiding Officer may insert into the record a statement of fact or
opinion prepared by a witness and may admit affidavits of witnesses who are
unavailable to testify.
5. The hearing should be transcribed verbatim. The Hearing Clerk will notify all
parties of the availability of the transcript and will furnish all parties with copies
(parties are responsible for paying the costs of duplicating additional transcripts).
6. Within 20 days of being notified of the availability of the transcript, any party may
submit proposed findings of fact, conclusions of law, and a proposed order.
Briefs supporting these must also be submitted. The Presiding Officer sets the
deadline for submitting reply briefs.
Informal Settlement Conference
1. Respondent may also request a settlement conference with EPA. (The Agency
does encourage this). Such a request, however, does not change the requirement
to file a timely answer to the complaint.
2. If a settlement conference is held, a consent agreement and order are drafted.
These should admit jurisdiction, admit the factual allegations (or neither admit nor
deny them), and consent to the proposed penalty. These documents, if agreed to,
will be signed by all parties and the case is ended.
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WSG35
Default
1. If any party: • fails to file an answer to the complaint;
• fails to comply with a prehearing or a hearing order; or
• fails to appear at a hearing or a conference
without good cause,
then a default judgement may be entered (after appropriate motions
are filed or in circumstances 2 & 3 at the discretion of the
Presiding Officer). Note that a default judgement may not be
entered against respondent for failure to appear at a hearing or
conference unless EPA presents sufficient evidence to establish a
prima facie case against respondent.
2. If one of the above circumstances occurs, the non-defaulting party drafts a
proposed default order. This is served on all parties and the party in default has
20 days to reply.
3. A default is an admission of all facts alleged in the complaint and a waiver of a
right to a hearing. If the complaint was for penalty, then the penalty proposed
becomes due and payable 60 days after the final default order.
4. If EPA defaults, then the complaint is dismissed with prejudice (i.e., the same
complaint cannot be brought again).
Initial Decision
1. Presiding Officer files his initial decision as soon as practicable with the Regional
Hearing Officer. Copies are sent to all parties. This decision includes findings of
fact, conclusions on all issues of law or discretion, and a recommended penalty
amount.
2. This decision becomes final within 45 days unless it is appealed to the
Administrator or the Administrator decides on his own to review the decision.
3. Parties may move to reopen a hearing to take further evidence. This motion must
be made no later than 20 days after service of the initial decision and must state
the specific grounds on which relief is sought, state the nature of the evidence,
show that the evidence is not cumulative, and show good cause why this was not
presented at the hearing. Presiding Officer rules on this within 10 days.
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WSG35
1. Interlocutory appeals:
(a) As a matter of right, a party may appeal only from a default order, an
accelerated decision or a decision to dismiss, or from an initial decision
after an evidentiary ruling. (An accelerated decision can be made at any
time by the Presiding Officer if there is no genuine issue of material fact
and if a party is entitled to judgement as a matter of law). The Presiding
Office may make a decision to dismiss when the complainant has failed to
make a prima facie case or cannot show he has a right to the relief
requested.
(b) All others, must be upon motion by the appropriate party and certified by
the Presiding Officer to the Administrator. If the Presiding Officer
declines to certify an issue to the Administrator, then this decision can be
reviewed only on review of the initial decision (unless the Administrator
determines that to delay review would not be in the public interest.)
(c) The Presiding Officer in extraordinary circumstances may stay the
proceedings pending the outcome of an interlocutory appeal.
2. Appeals from Initial Decision:
(a) Any party may appeal any adverse ruling by filing a notice of appeal and
an accompanying appellate brief with the Hearing Clerk and on all other
parties within 20 days after the initial decision is served on all parties.
(b) Within 1 5 days, reply briefs must be filed.
(c) The Administrator may review an initial decision. If he decides to do so,
the Hearing Clerk serves notice on all parties within 45 days of the initial
decision.
(d) The appeal of the initial decision is limited to issues raised by the parties
during the proceedings.
Final Order
1 . Administrator shall issue a decision as soon practicable after filing of briefs or
oral arguments. Administrator shall adopt, modify, or set
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WSG 35
aside the findings and conclusions of initial decision. Administrator may increase
or decrease the penalty amount (except in a review of a default order; he may not
increase the penalty.)
2. Motion to reconsider the final order must be filed within 10 days. This does not
stay the effective date of the final order unless specifically so ordered by the
Administrator.
L Payment of Civil Penalty .
Respondent shall pay any penalty within 60 days of date of final order.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- WSG36
Date Signed: March 1988
Handbook for Special Public Notification for Lead: For Public Drinking Water Suppliers
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
570/9-88-002
NTIS:
PB92-164722
ERIC:
G362
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 37
Date Signed: March 25,1988
SUBJECT: Policy on Publicizing Enforcement Activities
FROM: John R. Trax, Chief (signed by John Trax)
Drinking Water Branch
TO: Drinking Water Branch Chiefs
Regions I - X
The issue of publicizing our enforcement activities has been discussed on many
occasions. Due to the importance of such an effort, you and your staffs have requested that we
provide you with Agency guidance on the subject. This memorandum transmits to you the
Agency policy on publicizing enforcement activities.
The memorandum entitled "Policy on Publicizing Enforcement Activities" dated
November 12,1985, and signed by both the Assistant Administrator for Enforcement and
Compliance Monitoring and the Assistant Administrator for External Affairs clearly states EPA's
policy. Briefly, EPA's policy is that publicity of enforcement activities is a key element in the
Agency's program to deter noncompliance with environmental laws and regulations and that
timely publicity keeps both the public and the regulated community informed about EPA's efforts
to promote compliance. The document attached to the November 12,1985, memorandum
discussed this policy and its implementation in detail, giving guidance on when to issue press
releases, their content, their distribution, and coordination with headquarters, the Offices of
Public Affairs, the Department of Justice, and the States.
A major point of the policy guidance and also the subject of a separate memorandum
from the Deputy Administrator (copy attached) is that EPA should not agree to a settlement
which either bars a press release or which restricts its content. Please be aware of this policy as
you proceed with enforcement settlement negotiations.
To assist you in your efforts in this area, I have attached a copy of a press release which
Region IX recently issued concerning its receipt of a preliminary injunction in a civil case. I feel
that this press release was well done and could be used by other Regions as a model.
I hope that you and your staff find the attached guidance and sample helpful. If you or
your staff have any questions on this matter, please contact Betsy Devlin on my staff at FTS 332-
2303.
Attachments
cc: PWS Enforcement Coordinators
Carl Reeverts
Paul Baltay
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 37A
Date Signed: November 21,1985
MEMORANDUM
SUBJECT: Policy on Publicizing Enforcement Activities
FROM: Courtney M. Price (signed by Courtney M. Price)
Assistant Administrator for Enforcement
and Compliance Monitoring
Jennifer Joy Manson (signed by Jennifer J. Manson) .
Assistant Administrator for External Affairs
TO: Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Office of Public Affairs
(Headquarters and Regions I-X)
Regional Counsel (I-X)
Attached is the EPA Policy on Publicizing Enforcement Activities, a joint project of the
Office of Enforcement and Compliance Monitoring and the Office of Public Affairs. The
document establishes EPA policy on informing the public about Agency enforcement activities.
The goal of the policy is to improve communication with the public and the regulated community
regarding the Agency's enforcement program, and to encourage compliance with environmental
laws through consistent public outreach among headquarters and regional offices.
To implement this policy, national program managers and public affairs directors should
review the policy for the purpose of preparing program-specific procedures which appropriate.
Further, program managers should consider reviewing the implementation of this policy in EPA
Regional Offices during their regional program reviews. These follow-up measures should
ensure that publicity of enforcement activities will constitute a key element of the Agency's
program to deter environmental noncompliance.
Attachment
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WSG37A
EPA POLICY ON PUBLICIZING ENFORCEMENT ACTIVITIES
I. PURPOSE
This memorandum establishes EPA policy on informing the public about Agency
enforcement activities. This policy is intended to improve EPA communication with the public
and the regulated community regarding the goals and activities of the Agency's enforcement
program. Appropriate publication of EPA enforcement efforts will both encourage compliance
and serve as a deterrent to noncompliance. The policy provides for consistent public outreach
among headquarters and regional offices.
II. STATEMENT OF POLICY
It is the policy of EPA to use the publicity of enforcement activities as a key element of
the Agency's program to deter noncompliance with environmental laws and regulations.
Publicizing Agency enforcement activities on an active and timely basis informs both the public
and the regulated community about EPA's efforts to promote compliance.
Press releases should be issued for judicial and administrative enforcement actions,
including settlements and successful rulings and other significant enforcement program activities.
Further, the Agency should consider employing a range of methods of publicity such as press
conferences and informal press briefings, articles, prepared statements, interviews and
appearances at seminars by knowledgeable and authorized representatives of the Agency to
inform the public of these activities. EPA will work closely with the states in developing
publicity on joint enforcement activities and in supporting State enforcement efforts.
III. IMPLEMENTATION OF POLICY
A. When to Use Press Releases1
1. Individual Cases
It is EPA policy to issue press releases when the Agency: (1) files a judicial action or
issues a major administrative order or complaint (including a notice of proposed contractor
listing and the administrative decision to list); (2) enters into a major judicial or administrative
1 The term "press release" includes the traditional Agency press release, press advisories,
notes to correspondents and press statements. The decision on what method should be
used in a given situation must be coordinated with the appropriate public affairs office(s).
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WSG 37A
consent decree or files a motion to enforce such a decree; or (3) receives a successful court
ruling. In determining whether to issue a press release, EPA personnel will consider: (1) the
amount of the proposed or assessed penalty (e.g., greater than $25,000); (2) the significance of
the relief sought or required in the case, and its public health or environmental impact; (3)
whether the case would create national or program precedence; and (4) whether unique relief is
sought. However, even enforcement actions that do not meet these criteria may be appropriate
for local publicity in the area where the violative conduct occurred. Where appropriate, a single
press release may be issued which covers a group or category of similar violations.
Where possible, press release should mention the environmental result desired or
achieved by EPA's action. For example, where EPA determines that a particular enforcement
action resulted (or will result) in an improvement in a stream's water quality, the press release
should note such results. In addition, press releases must include the penalty agreed to in
settlement or ordered by a court.
Press releases can also be used to build better relationships with the states, the regulated
community, and environmental groups. To this end, EPA should acknowledge efforts by outside
groups to foster compliance. For example, where a group supports EPA enforcement efforts by
helping to expedite the cleanup of Superrund site, EPA may express its support for such
initiatives by issuing a press release, issuing a statement jointly with the group, or conducting a
joint press conference.
2. Major Policies
In addition to publicizing individual enforcement cases, EPA should publicize major
enforcement policy statements and other enforcement program activities since knowledge of
Agency policies by the regulated community can deter future violations. Such publicity may
include the use of articles and other prepared statements on enforcement subjects of current
interest.
3. Program Performance
Headquarters and regional offices should consider issuing quarterly and annual reports on
Agency enforcement efforts. Such summaries present an overview of the Agency's and Regions'
enforcement activities; they will allow the public to view EPA's enforcement program over time,
and thus give perspective to our overall enforcement efforts. The summaries should cover trends
and developments in Agency enforcement activities, and may include lists of enforcement actions
filed under each statute. The Office of Enforcement and Compliance Monitoring's (OECM)
Office of Compliance Analysis and Program Operations, and the Offices of Regional Counsel
will assist the Public Affairs Office in this data gathering. Public Affairs Offices can also rely on
the figures contained in the Strategic Planning Management System.
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WSG 37A
4. Press Releases and Settlement Agreements
EPA has, on occasion, agreed not to issue a press release as part of a settlement
agreement. EPA should no longer agree to a settlement which bars a press release or which
restricts the content of a press release. On January 30,1985, the Deputy Administrator issued an
abbreviated press release policy, which stated in pertinent part that: "It is against EPA policy to
negotiate the Agency's option to issue press releases, or the substance of press releases, with
parties outside of EPA, particularly those parties involved in settlements, consent decrees or the
regulatory process." This policy will help to ensure consistency in the preparation of press
releases and equitable treatment of alleged violators.
B. Approval of Press Releases
EPA must ensure that press releases and other publicity receive high priority hi all
reviewing offices. By memorandum dated August 23,1984, the Office of External Affairs
directed program offices to review and comment on all press releases within two days after the
Office of Public Affairs submits its draft to the program office; otherwise concurrence is
assumed. This review policy extends to OECM and the Offices of Regional Counsel for
enforcement-related press releases.
C. Coordination
1. Enforcement. Program, and Public Affairs Offices
More active use of publicity requires unproved coordination among Regional and
Headquarters enforcement attorneys, program offices and public affairs offices. The lead office
hi an enforcement case, generally the regional program office hi an administrative action and the
Office of Regional Counsel or OECM in a judicial action, should notify the appropriate Public
Affairs Office at the earliest possible time to discuss overall strategy for communicating the
Agency's action (e.g., prior notice to state or local officials) and the timing of a press release.
The lead office should stay in close contact with Public Affairs as the matter approaches fruition.
2. Regional and Headquarters Offices of Public Affairs
Regional and headquarters Public Affairs Offices should coordinate in developing press
releases both for regionally-based actions that have national implications and for nationally
managed or coordinated enforcement actions.
Whenever possible, both Regional and Headquarters offices should send copies of draft
press releases to their counterparts for review and comment. Both such offices should also send
copies of final releases to their counterparts.
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WSG 37A
3. EPAandDOJ
EPA can further improve the timeliness and effectiveness of its press releases regarding
judicial actions by coordinating with DOJ's Office of Public Affairs. When an EPA Office of
Public Affairs decides that a press release in a judicial enforcement case is appropriate, it should
notify DOJ or the appropriate U.S. Attorney's Office to ensure timeliness and consistency in
preparation of press releases. DOJ has been requested to notify OECM when DOJ intends to
issue a release on an EPA-related case. EPA's Office of Public Affairs will immediately review
such draft releases, and, if necessary to present the Agency's position or additional information,
will prepare an Agency release.
4. EPA and the States
Another important goal of this policy is to encourage cooperative enforcement publicity
initiatives with the states. The June 26,1984, "EPA Policy on Implementing the State/Federal
Partnership in Enforcement: State/Federal Enforcement 'Agreements,'" describes key subjects
that EPA should discuss with the states in forming state-EPA Enforcement Agreements. The
section on "Press Releases and Public Information," states that the "Region and State should
discuss opportunities for joint press releases on enforcement actions and public accounting of
both State and Federal accomplishments in compliance and enforcement." Further, as discussed
in the subsequent January 4,1985, Agency guidance on "Implementing Nationally Managed or
Coordinated Enforcement Actions," the timing of state and EPA releases "should be coordinated
so that they are released simultaneously."
Accordingly, EPA Public Affairs Offices should consult with the relevant state agency on
an EPA press release or other media event which affects-the State. EPA could offer the State the
option of joining in a press release or a press conference where the State has been involved in the
underlying enforcement action. Further, EPA-generated press releases and public information
reports should acknowledge and give credit to relevant state actions and accomplishments when
appropriate.
Finally, it is requested that EPA Public Affairs Offices send the State a copy of the EPA
press release on any enforcement activity arising in that state.
D. Distribution of Press Releases
The distribution of EPA press releases is as important as their timeliness. Press releases
may be distributed to the local, national, and trade press, and local and network television
stations.
1. Local and National Media
EPA must "direct" its press releases to ensure that the appropriate geographical areas
learn about EPA enforcement activities. To accomplish this goal, the appropriate Public Affairs
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WSG37A
Office should send a press release to the media and interest groups in the affected area, i.e., the
local newspaper and other local publications, television and radio stations, and citizen groups.
The headquarters Public Affairs Office, in conjunction with the appropriate regional office, will
issue press releases to the national press and major television networks where an EPA
enforcement activity has national implications.
2. Targeted Trade Press and Mailing Lists
The Agency must also disseminate information about enforcement activities to affected
industries. Sending a press release to relevant trade publications and newsletters, particularly for
a significant case, will put other potential violators on notice that EPA is enforcing against
specific conduct hi the industry. It is also useful to follow up such press releases with speeches
to industry groups and articles in relevant trade publications, reinforcing the Agency's
commitment to compliance.
To ensure the appropriate distribution of publicity, we are requesting each of the regional
Public Affairs Offices, in cooperation with the Regional Counsels and regional program offices,
to establish or review and update their mailing lists of print media, radio and television stations,
state and local officials, trade publications, and business and industry groups for each of the
enforcement programs conducted in the Regions.
E. Use of Publicity Other Than Press Releases
EPA headquarters and regional offices have generally relied on press releases to
disseminate information on enforcement activities. Other types of enforcement publicity are also
appropriate in certain instances.
1. Press Conferences and Informal Press Briefings
Press conferences can be a useful device for highlighting an enforcement activity and
responding to public concerns in a specific areas. Regional Administrators should consider using
press conferences to announce major enforcement actions and to elaborate on important
simultaneously issued press releases. Press conferences should also be considered where an
existing or potential public hazard is involved. The regional Public Affairs Office should always
inform the headquarters Public Affairs Office when it decides to hold a press conference to
provide an opportunity for the Administrator's advance knowledge and involvement if necessary.
2. Informal Meetings with Constituent Groups
To further supplement EPA efforts to inform the public and regulated community,
regional offices should meet often with constituent groups (states, environmental groups,
industry, and the press) to brief these groups on recent enforcement developments. These
meetings can be organized by the Public Affairs Offices. By informing the public, EPA increases
public interest in its enforcement program and thereby encourages compliance.
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WSG 37A
3. Responding to Inaccurate Statements
EPA should selectively respond to incorrect statements made about EPA enforcement
activities. For example, EPA may want to respond to an editorial or other article which
inaccurately characterizes EPA enforcement at a Superrund site with a "letter to the editor."
Where an Agency response is deemed to be appropriate, it should promptly follow the inaccurate
statement.
4. Articles and Prepared Statements
EPA's Public Affairs Offices and the Office of Enforcement and Compliance Monitoring
occasionally prepare articles on various aspects of the Agency's enforcement program. For
example, Region I issues a biweekly column to several newspapers hi the Region covering timely
enforcement issues such as asbestos in schools. We encourage all Regional and Headquarters
offices to prepare feature articles on enforcement issues. When the regional office is developing
an article on a subject with national implications, it should contact the Headquarters Office of
Public Affairs to obtain a possible quote from the Administrator and to discuss whether the
article should be expanded to a national perspective. Likewise, appropriate regions should be
consulted in the preparation of Headquarters articles or statements which refer to actions of or
facilities in particular regions.
5. Interviews
In some cases, Headquarters and Regional Public Affairs Offices should consider
arranging media interviews with the Regional Administrator, Deputy Administrator, the
Administrator, or other EPA officials. Such an interview will reflect the Agency's position on a
particular enforcement activity or explain EPA's response to an enforcement problem.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG37B
Date Signed: January 30,1985
MEMORANDUM
SUBJECT: Press Release Policy
TO: Assistant Administrators
Associate Administrators
Regional Administrators
Regional Counsels
Regional Public Affairs Directors
Staff Office Directors
I would like to clarify EPA's policy regarding the Agency's option to issue press releases
on Agency regulatory decisions and enforcement agreements, and on the content of those
announcements.
The content of press releases is an EPA internal matter at all times. It is against EPA
policy to negotiate the agency's option to issue press releases, or the substance of press releases,
with parties outside of EPA, particularly those parties involved in settlements, consent decrees or
the regulatory process.
A. James Barnes
Acting Deputy Administrator
(Signed by Jim Barnes)
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WSG 37B
Date Signed: February 29,1985
FOR IMMEDIATE RELEASE:
Contact: Terry Wilson, U.S. EPA
(415) 974-9961
U.S. EPA GRANTED PRELIMINARY INJUNCTION TO FORCE CLEAN UP
OF CONTAMINATED DRINKING WATER IN PLACER COUNTY, CALIFORNIA
(San Francisco)-The U.S. Environmental Protection Agency Friday was granted a
preliminary injunction by the U.S. District Court for the Eastern District of California in a civil
suit against Midway Heights County Water District filed under the authority of the Safe Drinking
Water Act.
The preliminary injunction was granted to protect the public water supply of residents of
a growing community near Weimar, in Placer County, who receive drinking water from a
completely untreated system. This water supply presents an endangerment to the health of
consumers.
Until the District supplies bottled water, residents are advised to boil all water for five
minutes before using it for cooking, drinking, washing dishes, brushing teeth, and making ice.
The preliminary injunction requires the District to immediately provide bottled water
until chlorination is put in place, to install a chlorinator by March 7,1988, to provide a second
chlorinator by May 1988, and to provide treatment to reduce the risk of virus in the water supply.
The District must sample the water and notify the public and the users of the contaminated water
until the issue is finally resolved in court.
"This severely contaminated open ditch system operated by the Midway Heights County
Water District subjects customers and visitors to a serious health threat," said John Wise, Acting
Regional Administrator, EPA Region 9. "A water supply that is not fit for human consumption
has no place in our society and violates the clear mandate of Congress."
Wise continued, "EPA will pursue these open ditch systems throughout the Central
Valley and the remainder of California. This action by the court is a first step. We intend to
continue to work closely with the California Department of Health Services to remove these
threats to the public health."
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WSG37B
The District supplies untreated water to more than 630 people from an open ditch that
receives runoff from heavily traveled Interstate 80, cattle pastures, septic tank fields, and other
areas of human activity.
Tests conducted by the California Department of Health Services show that maximum
allowable bacteria levels for drinking water have been greatly exceeded. Human or animal
excrement has been detected in the water sold by the District. Intestinal parasites and other
diseases-causing organisms may also be present. Water containing these organisms causes
serious illnesses such as gastroenteritis, giardiasis, and hepatitis.
EPA filed suit against the District on July 31,1987, after an emergency order it issued in
December 1986, failed to bring the District into compliance with the law. This suit cites the
District for violations of bacteriological and turbidity standards; for failure to monitor water
quality; for failure to notify the State, the public, and customers of the poor quality water; for
failure to take additional samples when water failed to meet the standards; and for violating
EPA's emergency order. The District has maintained that it supplies water for irrigation use
only, although its customers use it for drinking water.
The California Department of Health Services had already issued an administrative order
against the District, but the District had refused to comply. The State has also sued the District
to require that the District apply for a permit to operate a public water supply system. That case
is presently pending before the California Superior Court in Auburn.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 38
Date Signed: April 12,1988
MEMORANDUM
SUBJECT: Enforcement Actions Against Systems Which Are "Intermittent" Violators of the
National Primary Drinking Water Regulations
FROM: John R.Trax, Chief
Drinking Water Branch
TO: Drinking Water Branch Chiefs
Regions I - X
At our last compliance and enforcement conference call, a situation was discussed which
we believe requires a fuller explanation than was possible during the call. The issue can be
described as follows: a public water system (PWS) is identified as being in violation of the
National Primary Drinking Water Regulations (NPDWRs). (The system does not have to be a
significant noncomplier [SNC]). The Region, upon noting the violation, begins to take action,
for example, issuing a Notice of Violation (NOV) or discussing the situation with the State and
agreeing on a plan of action. At the end of the next compliance period, however, the system is
noted as being in compliance. The question raised is should the Region proceed with a planned
enforcement action in this situation.
First, it is important to note that EPA has the authority to take an enforcement action
against a PWS for violations of the NPDWRs, whether or not the system has returned to
compliance. The issue then is: do we believe that an enforcement action would be an
appropriate use of our enforcement discretion and resources?
The ultimate answer depends upon a careful evaluation of all the circumstances in the
case; however I believe we can outline some general guidance on where we believe enforcement
actions would be appropriate.
Enforcement action would be appropriate if: (a) the system has a history of violations
(this is true even if the system has never attained SNC status), that is, the system tends to come in
and out of compliance; or (b) the system has basic deficiencies which caused or contributed to
the violations; and (c) there is evidence to indicate that these deficiencies which caused or
contributed to the violation have not been corrected. These conditions indicate that a compliance
problem exists which may be able to be remedied by an enforcement action.
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WSG38
Enforcement action may not be appropriate if: (a) the system does not have a history of
violations, and (b) it appears from the facts that the cause of the violation has been corrected; or
(c) that the violation was due to a special set of circumstances which is not likely to "recur. Under
these circumstances, the system's compliance status should be monitored carefully and any
violation should be investigated.
Another question which is often raised is what should be done if a proposed
administrative order is issued and the system comes back into compliance or agrees to take the
necessary corrective actions to return to compliance. In this case, we believe that the Regions
should continue with the process and issue the final administrative order. The reason for this is
that a final administrative order is enforceable against the respondent should respondent fail to
comply with its terms. A proposed administrative order is not enforceable.
I hope that this discussion clarifies the points which we were trying to make in the March
conference call. As with many enforcement policies, it is difficult to establish absolute rules
which must be followed since so much depends on the facts of an individual case.
If you have any questions on this, please contact Betsy Devlin on FTS 382-2303.
cc: PWS Enforcement Coordinators
Carl Reeverts
Paul Baltay
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 39
Date Signed: April 21,1988
MEMORANDUM
SUBJECT: Coordination with State Officials on the Issuance of Notices of Violation under
Section 1414 of the Safe Drinking Water Act
FROM: John R. Trax, Chief
Drinking Water Branch
TO: Drinking Water Branch Chiefs
Regions I - X
At our March 24,1988, Compliance and Enforcement conference call, a question was
raised on dealing with the States prior to the issuance of a notice of violation (NOV) to a public
water system for violations of the Safe Drinking Water Act (SDWA) or its implementing
regulations. Although we responded to this question at the conference call, we indicated that w<
would provide you with written guidance on the matter.
It has always been our position that coordination with the States is an essential
component of our enforcement program. We have suggested, for example, that you hold
quarterly meetings with your State counterparts to discuss SNCs and exception systems and to
coordinate enforcement efforts. Further, the State-EPA enforcement agreements should lay out
the process for coordinating enforcement efforts in some' detail.
States, thus, have a critical role to play in enforcing the drinking water regulations and we
must do all that we can to keep our relationships with them both positive and productive. To this
end, several Regions have worked extensively with their States and have established procedures
defining each party's roles and responsibilities prior to the issuance of an NOV. Where this has
been done, the enforcement process appears to be working smoothly.
While it is important to keep States involved in the enforcement process, please
remember that the States are not given the statutory right to review or concur on NOVs. Under
Section 1414, whenever EPA finds a violation, EPA is to notify the State and the public water
system (that is, issue the NOV) and if beyond the 30th day after this notification, the State has
not commenced an appropriate enforcement action, EPA is to issue an order requiring the system
to comply. [Section 1414(a)(l)(B).] Therefore, technically, EPA is to issue the NOV to the
system and the State and then discuss the issue and provide advice and technical assistance to the
system in violation. While I am not suggesting that you adopt this exact procedure, I believe that
it is important to realize that the States cannot delay Federal enforcement actions and that the
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WSG39
SDWA mandates the issuance of NOVs to systems in violation of drinking water regulations
regardless of whether the State agrees with this action.
In summary then, it is our position that the States play a critical role in the enforcement of
the drinking water regulations and we should coordinate enforcement efforts with them as much
as possible. However, the desire to coordinate with the States on enforcement matters must be
balanced against the very specific responsibilities the SDWA imposes on EPA. We believe that
the best way to reconcile these two responsibilities is to work with your States, both through
routine meetings and the Enforcement Agreement process, as many of you have already done to
develop procedures and to define the roles and responsibilities of the respective parties.
I hope that this clarifies our policy. Should you have any questions, please feel free to
call me or any member of my staff.
cc: Carl Reeverts
Paul Baltay
PWS Enforcement Coordinators
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG40
Date Signed: April 27,1988
Date Revised: November 1998
Revised by: Wendy Warren
MEMORANDUM
SUBJECT: Response to Questions Raised by Region IV Concerning Public Notification
Requirements for the Unregulated Contaminants
FROM: John R. Trax, P.E., Chief (signed by John Trax)
Drinking Water Branch (WM-550X)
TO: William Patton, Chief
Water Supply Section - Region IV
I would like to respond to two questions raised by your staff concerning public
notification requirements for the unregulated organic contaminants.
The second question involves the media usage for public notification for the unregulated
organic contaminants where the requirement is a notice within three months from the availability
of the test results. The issue is whether a newspaper notice meets the requirements when the
regulation mentioned "written notice." Newspaper notification will fulfill the requirement if the
circulation of the newspaper adequately covers the consumer of the water system.
Please contact Craig Damron at 382-5556 if you have further questions or need
clarification on public notification requirements.
cc: All other Regional Branch Chiefs
*Note: Question 1 deleted, as covered in the current section 141.35(d).
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WSG 41-50
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG41
Date Signed: September 16,1988
MEMORANDUM
SUBJECT: Policy on Regional Response to a State Which
Decides to Accept the Five Percent Reduction
in its PWSS Program Grant
FROM: Michael B. Cook, Director (signed by Michael B. Cook)
Office of Drinking Water
TO: Richard L. Caspe, Director
Water Management Division
This responds to your request, made in your May 2,1988, memorandum which provided
comments on the 1989 PWSS Enforcement Agreement Guidance, for a statement of the Office of
Drinking Water's official position on the response a Region should make if a State elects to
accept a five (5) percent reduction in its PWSS program grant. This reduction would be imposed
as a penalty for not enforcing a lead ban and/or the lead public notification requirements as
mandated by Section 1417 of the Safe Drinking Water Act (SDWA or the Act). We have
considered this question and our position is described below.
Section 1417(b) of the SDWA requires States to enforce the lead ban and the lead public
notification requirements. It is important to note that the SDWA does not require a State to enact
a lead ban. Rather, the Act requires a State to enforce the SDWA ban on the use of lead through
any means a State believes is appropriate. A State law would ensure that all areas within the
State would be uniformly covered and would make State-wide enforcement much easier than if
each local jurisdiction were to have its own rules or codes; however, EPA cannot require a State-
wide law or regulations.
Section 1417(c) specifies the penalty a State faces for not complying with 1417(b); that
is, EPA may withhold up to five (5) percent of that State's PWSS program grant. We have
developed guidance for the Regions on the withholding of five (5) percent of a State's grant.
This guidance should be issued in final version [or form] shortly. The situation you describe
would arise after EPA has withheld five (5) percent of the grant and the State informs EPA that it
has no plans to enforce a State-wide lead ban and/or the lead public notification requirements,
despite the loss of the Federal funding for its PWSS programs.
You are correct in your statement that the Region may not initiate primacy withdrawal for
failure to enforce the lead ban and/or lead public notification requirements. Section 1413 of the
SDWA, which sets forth the requirements for State primary enforcement responsibility
1
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WSG41
("primacy"), requires a State to have "adopted drinking water regulations which are no less
stringent than the national primary drinking water regulations in effect under Sections 1412(a)
and 1412(b) and to have adopted," and be implementing "adequate procedures for the
enforcement of such State regulations." The lead ban is not a national primary drinking water
regulation promulgated under the authority of Section 1412(a) or 1412(b) of the SDWA; rather it
is contained in Section 1417. Therefore, it is not a requirement for primacy.
Even though the enforcement of the lead ban and lead public notification provisions is
not a requirement for primacy, it is ODWs position that these provisions of the SDWA are of
high priority. The Regions should, therefore, do as much as possible to convince a State to
enforce a State-wide lead ban, to promote and enforce local lead bans, and to enforce the lead
public notification provisions. There are several options open to the Region for doing this. One
would be to meet with the State directors, State legislators, and the members of the governor's
staff to try to work through the issue. Another option would be to issue press releases or write
newspaper articles informing the affected communities of the health effects of lead and that their
State officials have not acted in accord with the SDWA to protect their health. The Region could
also encourage local environmental or other civic groups to become involved in the lead ban
issue.
Thus, although there may be no direct mechanism to force a State which does not wish to
do so to enact and/or enforce a lead ban and lead public notification provisions, there are options
available to the Region to deal with the situation. Regions should thoroughly plan any course of
action and I would appreciate it if you would inform Headquarters of your plans before
proceeding.
In your May 2,1988, memorandum, you had also asked for a legal opinion on the use of
the emergency provisions of the SDWA (Section 1431) to enforce the lead ban. We have been
working with the Office of Enforcement and Compliance Monitoring and the Office of General
Counsel on this issue and should be able to provide you with guidance shortly.
I hope this is responsive to your question. Should you wish to discuss this further, please
call me.
cc: Water Management Division Directors
Water Supply Branch Chiefs
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WSG 42 is outdated and has been deleted.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG43
Date Signed: December 7,1988
Revised: June 1,1998
Revised by: Judith Fraser
MEMORANDUM
SUBJECT: The Safe Drinking Water Act (SDWA) Lead Ban
FROM: Margaret B. Silver (signed by M.B. Silver)
Attorney
Water Division (LE-132W)
TO: Jeanne Briskin
Gregory Helms
Lead Task Force
Office of Drinking Water (WH-550D)
Use Prohibitions
Under the lead ban in section 1417(a)(l) of SDWA, pipe, solder, and flux "which is used
after the enactment of the Safe Drinking Water Act Amendments of 1986. in the installation or
repair of (A) any public water system, or (B) any plumbing in a residential or nonresidential
facility providing water for human consumption which is connected to a public water system
shall be lead free" (emphasis added). Section 1417(b) of SDWA states that "the requirements of
subsection (a)(l) [i.e., the lead ban] shall be enforced in all States effective 24 months after the
enactment of this section" (emphasis added).
The SDWA amendments were enacted on June 19,1986. Because the statute says that
the lead ban is to be enforced two years after its effective date, the question arises whether the
lead ban was in effect from June 19,1986 to June 19,1988. The plain language of the statute, as
well as its legislative history, make it clear that the lead ban took effect June 19,1986.
Section 1417(a)(l) very simply and directly states that pipe, solder, andflux used for the
purposes listed in that section after June 19,1986 must be lead free. The fact that Congress gave
the States two years to incorporate the lead ban into State and/or local law and to implement an
enforcement program does not change the clearly stated effective date of the federal requirement.
The legislative history confirms that Congress intended that the lead ban go into effect on
June 19,1986. The Conference Report on the 1986 SDWA amendments states that "[t]he lead
use prohibition is effective immediately." Conf. Rep. No. 99-575,2d Sess., p. 38 (1986). The
report goes on to explain that "[b]ecause enforcement will require States to modify their State or
1
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG43
Date Signed: December 7,1988
Revised: June 1,1998
Revised by:" Judith Fraser
local plumbing codes or apply other means, a period of 24 months is provided before States are
required to enforce the prohibition." Ibid. In addition, in discussing the proposed amendments
on the Senate floor, Senator Durenburger stated that:
It is our intention that State and local governments make the
modifications in codes and regulations necessary to effectuate the
ban as soon as possible. And we make the ban in Federal law
effective immediately for that purpose.
132 Cong. Rec. S6289 (daily ed. May 21,1986).
Section 1417(b) requires States to enforce the use prohibitions by June 19,1988 through
State or local plumbing codes, or such other means of enforcement as the State may determine
appropriate. Furthermore, the United States Environmental Protection Agency has the authority
to enforce §1417(a)(l) in the event a State fails to do so. See §§1414(b)(g) and (i). In addition,
States that fail to enforce §1417(a)(l) are subject to a withholding penalty of 5% of federal
program funds. Finally, EPA may also rely upon §1431's emergency powers to issue orders as
necessary to protect the health of persons and commence civil actions for appropriate relief,
including a restraining order or permanent or temporary injunction, when it finds that a
contaminant which is present or is likely to enter a public water system may present an imminent
and substantial endangerment to the health of persons.
Unlawful Acts-Sales
The 1996 Amendments to the Safe Drinking Water Act added Section 1417(a)(3),
"Unlawful Acts." This section makes it unlawful for persons to introduce into commerce any
pipe or plumbing fitting or fixture that is not lead free, except for pipe that is used in
manufacturing processes. §1417(a)(3)(A). The amendments also make it unlawful for any
person to introduce into commerce any solder or flux that is not lead free unless the solder or flux
bears a prominent label stating that it is illegal to use the solder or flux hi the installation or
repair of any plumbing providing water for human consumption. §1417(a)(3)(c). Finally,
persons engaged in the business of selling plumbing supplies may not sell solder or flux that is
not lead free. §1417(a)(3)(B). These sales bans are enforceable beginning August 6,1998, two
years after the August 6,1996 effective date. Section 1417(b) does not require States to enforce
the sales ban. However, the sales ban is federally enforceable pursuant to sections 1414(b), (g),
and (i), which allow the EPA to bring civil actions and issue admmistrative orders.
cc: Regional Drinking Water Branch Chiefs
ORC Water Branch Chiefs
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG44
Date Signed: March 17,1989
Revised: June 1998
Revised by: Judith Fraser
MEMORANDUM
SUBJECT: Scope of Remedial Action Programs in Schools under the
Lead Contamination Control Act of 1988
FROM: Michael B. Cook, Director (signed by Michael B. Cook)
Office of Drinking Water
TO: Regional Drinking Water Branch Chiefs
Since passage of the Lead Contamination Control Act of 1988 (LCCA), a number of
issues regarding the scope of water cooler replacement programs have arisen. This memo
addresses two of the most frequently asked questions.
ISSUE 1
Does the Lead Contamination Control Act of 1988 require that the remedial action
programs for lead in schools ensure that all water coolers that are not lead free be repaired,
replaced, permanently removed, or rendered inoperable?
RESPONSE
No. Water coolers that are tested and found not to contribute lead to drinking water need
not be repaired, replaced, permanently removed, or rendered inoperable, even if they are not lead
free.
DISCUSSION
The Lead Contamination Control Act of 1988 amends the Safe Drinking Water Act by
adding a Part F1. Section 1461(2) defines "lead free" broadly; with respect to water coolers, it
means:
1 The Contamination Control Act of 1988 specifies where each new provision in the Act is
to be codified hi the Safe Drinking Water Act (SDWA). In this memorandum, I have
used the SDWA citations.
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WSG44
each part or component of the cooler which may come in contact with drinking
water contains not more than 8 percent lead, except that no drinking water cooler
which contains any solder, flux, or storage tank interior surface which may come
in contact with drinking water shall be considered lead free if the solder, flux, or
storage tank interior surface contains more than 0.2 percent lead.
Section 1464(d)(l) requires each State to establish a program "to assist local educational
agencies in testing for, and remedying, lead contamination in drinking water from coolers and
from other sources of lead contamination" hi schools. Section 1464(d)(3) states that
In the case of drinking water coolers, such program shall include
measures for the reduction or elimination of lead contamination
from those water coolers which are not lead free and which are
located in schools. Such measures shall be adequate to ensure that
.. .all such water coolers hi schools... are repaired, replaced,
permanently removed, or rendered inoperable unless the cooler is
tested and found (within the limits of testing accuracy) not to
contribute lead to drinking water.
You have asked whether the programs for remedying lead contamination in school
drinking water must require that all water coolers that are not lead free be repaired, replaced,
permanently removed, or rendered inoperable, or whether this requirement only applies to
coolers that (1) are not lead free and (2) contribute lead to drinking water. I believe the latter
interpretation is correct.
The last sentence of Section 1464(d)(3) plainly states that the "repair, replace, remove"
requirement applies to "all such water coolers," and the previous sentence clearly indicates that
"such water coolers are those that are not lead free." Thus, I conclude that the "repair, replace,
remove" requirements only applies to water coolers which are not lead free and are tested and
found to contribute lead to drinking water. The legislative history of this provision is consistent
with this interpretation. See H.R. Rep. No. 1041,100th Cong., 2d Sess. 16 (1988). In addition,
this interpretation is sensible; rather than requiring automatic repair, replacement, etc., of all
water coolers that are not lead free, the school is allowed to test each cooler to determine
whether, in fact, it does add lead to the water.
ISSUE 2
Remedial action programs for schools mandated by the LCCA must ensure that water
coolers that are not lead free be repaired, replaced, permanently removed, or rendered inoperable
unless they are tested and found not to contribute lead to drinking water — does this requirement
apply to all coolers that are not lead free, regardless of how little lead they contribute?
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WSG44
RESPONSE
No. Water coolers need not be repaired, replaced, permanently removed, or rendered
inoperable unless the cooler is tested and found within the limits of testing accuracy not to
contribute lead to drinking water. Thus, only coolers which can be shown to contribute lead to
drinking water need be repaired, replaced, or removed.
DISCUSSION
As discussed above, under Section 1464(d)(3), remedial action programs for lead in
school drinking water must include measures that are adequate to ensure that all drinking water
coolers that are not lead free are "repaired, replaced, permanently removed, or rendered
inoperable unless the cooler is tested and found (within the limits of testing accuracy) not to
contribute lead to drinking water" (emphasis added). Thus, Congress recognized that, at low
levels, testing accuracy decreases and that to impose the "repair, replace, remove" requirement on
a cooler which contributes small amounts of lead may not be appropriate.
The guidance document and testing protocol entitled Lead in School Drinking Water
(EPA 570/9-89-001) recommends that action be taken to limit exposure or reduce lead in water
whenever lead levels exceed 20 ppb. We believe that this trigger provides adequate protection of
health in situations with exposure patterns such as those found in schools. The guidance
document provides a way to identify which parts of the plumbing, including water coolers
contribute lead to water, the protocol has been field tested during its development and we are
confident that it reliably identifies lead levels of concern and roughly identifies the primary
sources within the plumbing system. However, we do not now have enough data to know or
predict the sensitivity of the protocol. This means we cannot yet determine a level less than 20
ppb that we can be positive is definitely coming from the cooler (as opposed to sources upstream
from the cooler). As we develop a track record, we expect to obtain a better estimate of the
protocol's sensitivity. Until then, I recommend that you limit the "repair, replace, remove"
requirement to coolers that test above 20 ppb where you are confident that a significant portion
of the lead is contributed by the cooler.
NOTE: Recent agreement between Consumer Product Safety Commission and
Scotsman Group, Inc. provides for replacement or refund of any Halsey
Taylor cooler manufactured before April 1,1979, that contributes in
excess of 20 ppb of lead. Lead measurements must be based on EPA
testing protocol published "Lead in School Drinking Water" guidance, and
on analysis from EPA certified laboratories.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG44A
Date Signed: May 18,1989
Revised: July 1998
Revised by: Judith Fraser
MEMORANDUM
SUBJECT: Lab Certification for Lead Contamination Control Act (LCCA)
FROM: Arthur H. Perler, Chief
Science and Technology Branch, CSD
TO: Jeanne Briskin
Regulatory Impact Analyst, ODW
THROUGH: Joseph A. Cotruvo, Ph.D., Director
Criteria and Standards Division, ODW
As we discussed on the phone on May 17,1989, here is some draft language for your
response to paragraphs 1 and 3 on page 2 of Rosov's letter.
Q. 1 The LCCA requires that testing be done in laboratories approved by the State.
EPA does not intend to write laboratory certification regulations under the LCCA.
Rather, EPA recommends that States base approvals under the LCCA upon then-
existing laboratory certification program for lead compliance samples under the
Safe Drinking Water Act. States should examine each laboratory's current
certification status and performance on recent low-level PE-samples provided by
EPA, or equivalent samples.
Q. 2 In March 1997, EPA published the "Manual for the Certification of
Laboratories, Analyzing Drinking Water Criteria and Procedures, Quality
Assurance" (4th Edition). This manual attempts to address past difficulties
resulting from significant differences in State laboratory certification programs. It
is available via the internet at http://www.epa.gov/OGWDW/labindex.html
(Signed by: Arthur H. Perler)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG45
Date Signed: April 25,1989
MEMORANDUM
SUBJECT: Final Guidance on Implementing the Indian Primacy Rule
for the PWSS and UIC Programs
FROM: Robert J. Blanco, Director (signed)
State Programs Division
TO: Drinking Water Branch Chiefs
Regions I - II and IV - X
This memorandum transmits to you our final guidance document on Implementing the
Indian Primacy Regulations for the PWSS and UIC programs. A copy of the final draft of this
document was sent to you on February 23 along with a request for comments. We received
comments from the Office of General Counsel and the Office of Water. In response to these, we
have made some minor changes, for example, we have moved the discussion of Tribal Courts
into the section on Capabilities. We also clarified our discussion on enforcement and added a
Table of Contents.
I wish to thank all of you for your assistance in this project and I hope this document will
be useful to you and your staff. Should you have any questions, please contact Betsy Devlin
(FTS 382-2303) for the PWSS program and Don Olson (FTS 382-5558) for the UIC program.
Attachment
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TABLE OF CONTENTS
SECTION PAGE NUMBER
I. Introduction 3
II. Treatment as a State 5
A. Required Information 5
B. EPA Review of Treatment as a
State Applications 10
C. Time Frame for Processing Treatment
as a State Application 11
III. Development Grants 12
A. Required Information 12
B. EPA Review 15
IV. Primacy 16
A. Required Information 16
B. EPA Review 16
Attachments
A. Treatment as a State Checklist
B. Treatment as a State Application Process Flowchart
C. Suggested Development Grant Goals for the PWSS and UIC Primacy Programs
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INDIAN PRIMACY GUIDANCE
April 1989
I. INTRODUCTION
Section 1451 of the Safe Drinking Water Act (SDWA) authorizes the Administrator to
treat Indian Tribes as States. Section 1451 states: "Such treatment shall he authorized only if:
(a) the Indian Tribe is recognized by the Secretary of the Interior and has a governing
body carrying out substantial governmental duties and. powers;
(b) the functions to be exercised by the Indian Tribe are within the area of the Tribal
government's jurisdiction; and
(c) the Indian Tribe is reasonably expected to be capable, in the Administrator's
judgment, of carrying out the functions to be exercised in a manner consistent
with the terms and purposes of this title and all applicable regulations."
On September 26,1988, EPA published the final regulations for addressing primary
enforcement responsibility (primacy) for Indian Tribes for the Public Water System Supervision
(PWSS) and the Underground Injection Control (UIC) programs (53 F_R 37396). The regulations
envision a three-step process for Indian Tribes to be granted primary enforcement responsibility
for administering a PWSS or a UIC program. The first is to be designated eligible for treatment
as a State; the second, to apply for and receive Federal funding to develop program capability;
and finally, to apply for and be granted primary enforcement responsibility using the same
procedures and meeting the same requirements as States must meet.
The regulations also expand on the statutory criteria identified above by specifying
various factors the Agency will evaluate in determining a given Tribe's eligibility for treatment
as a State. Readers of this guidance are directed to the Preamble of the final rule (53 FR 37396)
for a thorough discussion of the treatment as State requirements. The regulations may be found
at 40 CFR 142.76 for the PWSS program and 40 CFR 145.56 for the UIC program.
It is important for all to be. aware that Tribes may apply for treatment as a State under
either the Safe Drinking Water Act or the Clean Water Act and that once so designated, a Tribe
need only submit information unique to the specific program (e.g., PWSS or UIC) for which it is
applying (rather than resubmitting all previous treatment as a State information). It is therefore
critical that contacts be kept among all water programs.
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After being designated eligible to be treated as a State, a Tribe may apply for a
development grant. As has been done with the States, development grants will be handled on a
case-by-case basis. Staff should work closely with Tribal applicants to identify both existing and
needed program capabilities. Much of the information pertaining to existing program
capabilities is likely to be part of the treatment as a State application. If the Tribe has applied for
treatment as a State for the PWSS or the UIC program, the development grant application may
reference the treatment as a State application and not repeat information already provided. If the
Tribe has applied for treatment as a State under another program, then information on PWSS
and/or UIC program capabilities will have to be prepared and submitted. This guidance package
identifies goals to be achieved during the period of the development grant. The Regions may
modify these suggested goals to fit the specific situation.
The third and final application is for primacy. Once a Tribe has completed the
development phase and has demonstrated to the satisfaction of the Regional Administrator that it
can effectively administer the program, the Tribe submits an application for primacy. The
requirements and procedures for applying for primacy are specifically defined in 40 CFR
Sections 142.10 through 142.13 for the PWSS program and in 40 CFR Part 145 for the UIC
program. Tribes must meet these requirements in order to be granted primacy. (Note: the
PWSS primacy regulations are undergoing revision. Indian Tribes applying for primacy will be
subject to the new regulations which are expected to be promulgated in July 1989. When these
are final, a copy will be circulated to all for their use.)
Regional staff should work with the Tribes in their Region to fully explain the rule and its
potential impact on the Tribes. An important item which must be dealt with early on is the
economic aspects of assuming a PWSS or UIC primacy program. The grant regulations state that
a Tribe must match federal funding at 25% unless the Tribe can demonstrate that it does not have
adequate funds, including federal funds authorized by the statute, to be used for matching
purposes. In that case, the Tribal match could be lowered to 10%. The key point which must be
communicated is that the level of funding available for a given fiscal year is fixed, and
consequently, an applicant may not receive the entire level of funding requested. Those funds
required, but not provided by the federal government, will have to come from Tribal sources. An
analysis of State PWSS programs indicated that, although the States are required to match federal
funds at 25%, in reality they are matching 50 to 60 % because the Agency is unable to provide
any additional resources. It is quite likely that Tribes assuming primacy will face similar
situations.
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In addition, in these early discussions, the limitations of the primacy programs must be
pointed out. For example, the SDWA does not provide funds for construction and/or
maintenance of drinking water facilities nor can facilities be upgraded using SDWA funds. It is
important that these be understood at the beginning of the process.
This guidance document is meant to serve two primary purposes. First, it is designed to
familiarize all staff with the Indian primacy rule and its requirements. Secondly, it should give
Regional staff the assistance they need to discuss the rules with Tribes and to evaluate Tribal
submissions, finally, please note that this guidance does not provide a detailed discussion of the
requirements for primacy. These are handled in other materials and staff should consult these for
additional details.
II. TREATMENT AS A STATE
A. Required Information
Tribes must submit information which demonstrates the following:
(1) Federal Recognition - The Secretary of the Interior publishes in the Federal
Register a list of Federally recognized Tribes. The applicant may submit a copy
of this list to establish the fact that it has federal recognition. In the event that the
Tribe has been recently "recognized" but does not yet appear on the list hi the
Federal Register, the Tribe should provide copies of the appropriate paperwork it
has received from the Secretary of the Inferior. If a Tribe has other documentation
which shows Federal recognition, it may submit this in lieu of a copy of the
Federal Register notice.
(2) "Governing body carrying out substantial duties and powers" - The regulations
require that a Tribe submit a narrative statement which shows that a Tribe is
performing these duties in providing for the health, safety, and welfare of its
Tribal members. Examples of the duties include, but are not limited to, the power
to tax, the power of eminent domain, and the power to adopt civil regulations.
The regulations also require documentation to support the information provided in
the narrative. Rather than have Tribes provide what could be a great deal of
extraneous information, Regions should have applicants focus the material as
appropriate. For example, some Tribal constitutions are very lengthy and
incorporate all Tribal codes. It would be very time consuming for the Tribe to
make copies of this material and also for Regional staff to review it. The Tribe
could simply providea copy of the ratification page, a table of contents, and the
appropriate codes.
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Most Indian Tribal governments perform essential government functions
traditionally performed by sovereign governments; however, the degree to which
these functions are developed and exercised can vary widely among the Tribes.
Consequently, the Region must evaluate each application on a case-by-case basis
to determine if the Tribe exercises the necessary duties and powers to promote the
health, safety, and welfare of the residents.
The narrative statements required by the regulations [142.76(b) for the PWSS
program and 145.56(b) for the UIC program] must include, at a minimum, the
following:
(a) An identification of the sources of the Tribal government's authority to
carry out the governmental functions currently being performed (e.g.,
Tribal constitution);
(b) A description of the organizational structure of the Tribe. This must
include a description of the powers exercised by each governmental entity;
for example, police powers and taxation. It must also include a
description of how governmental members are elected or appointed and
the length of the terms served; and
(c) A description of the programs that the Tribe has instituted to promote
the health, safety, and welfare of its Tribal members. This must include a
description of the responsible Tribal entities for enforcing the programs
and the enforcement mechanism.
(3) "Functions to be exercised...are within the Tribal government's jurisdiction" - In
order to assume responsibility for an environmental regulatory program within the
exterior boundaries of a reservation, the Tribe must have regulatory authority over
the geographic area hi question. A Tribe's authority over the area may appear
clouded by the existence of fee lands, federal lands, and non-Indian or federally
owned water systems within the reservation boundaries. (These complications,
however, should not significantly affect the Tribe's application for treatment as a
State.)
The Tribe must demonstrate its legal authority over the area in question. The
Tribal Attorney General, or an equivalent officer, must submit a statement
certifying that the Tribe possesses sufficient authority to regulate and enforce the
PWSS or UIC program in the appropriate area. This statement must be supported
by attaching copies (or portions thereof) of appropriate treaties, Tribal
constitutions, codes, or resolutions documenting this authority. Where possible,
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WSG45
specific language maintaining the assertion should be highlighted orexcerpted so
as to provide the strongest and most logical arguments for Tribal authority.
In addition to the legal documentation, the Tribe must submit a legal description
of the area over which it asserts Tribal authority and a map showing the location
of this area. Finally, the Tribe should submit information identifying specific
public water systems or injection wells over which they assert Tribal authority.
Map scales are left to the applicant's discretion; however, they should clearly
delineate the reservation boundary and public water supply facilities and/or
underground injection wells which they consider to be. within their legal authority.
Finally, the Tribe must have jurisdiction over the persons (i.e., the
owners/operators of the public water systems and/or injection wells). This is dealt
with in the section on Tribal court systems.
(4) "Reasonably expected to be capable" - The regulatory language requires Tribes to
submit a narrative statement that addresses the six criteria related to capability
identified in 40 CFR 142.76(d) for the PWSS program and in 40 CFR 145.56(d)
for the UIC program. Each of the six criteria is listed hi this section along with an
explanation of the information which must be provided.
(a) Previous management experience - [142.76(d)(l) and 145.56(d)(l)] The
Tribe's managerial skills will be evaluated on the basis of its experience in
administering contracts and grants awarded under such authorities as the Indian
Self-Determination Act, the Indian Mineral Development Act, or the Indian
Sanitation Facility Construction Activity Act. The narrative should state each of
the contracts and/or grants that the Tribe administers or has administered, and
provide a copy of any evaluations by the awarding Agencies. EPA will consider
such factors as the variety and length of the managerial experiences and will
consider the evaluations of Tribal performance in administering programs
performed by the awarding Agencies.
(b) Existing environmental or public health programs administered by the Tribal
government body and a copy of related Tribal laws, regulations, and policies -
[142.76(d)(2) and 145.56(d)(2)] The Tribe should describe each of the programs
specified above and submit the appropriate documentation specifying the
authority for implementing the program. The description should include the
responsible Tribal entity for administering the program. EPA will consider such
factors as number of programs the Tribe implements and its record of progress in
enforcing the provisions of each program. (If this information has been provided
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in the discussion of "governing body carrying out substantial duties and powers,"
then the material may be referenced and not repeated here.)
(c) Accounting and Procurement system - [142.76(d)(3) and 145.56(d)(3)] The
Tribe must provide a description of its accounting and procurement system. EPA
will review the Tribe's system to ensure that it meets established federal
guidelines (e.g., 25 CFR 271.46).
(d) Entities which exercise the executiver legislative, and judicial functions of
Tribal government - [142.76(d)(4) and 145.56(d)(4)] The submission required
under the "substantial governmental duties and powers" is likely to provide the
necessary information as to the executive and legislative functions of Tribal
government and may be referenced by the Tribe in its application. The
information will be reviewed according to the criteria hi that section. Information
on Tribal judicial functions is discussed below. Please note that this information
may also be submitted under the "substantial governmental duties" section or with
jurisdiction. If it has been submitted there, it may be referenced and not repeated.
Tribal court systems may vary in make-up from non-Indian courts. In
order for EPA to evaluate a Tribe's judicial system, specific knowledge of the
court organization and procedures is required. A second issue is the question of
how a non-Indian receives "due process" in a Tribal court. Both of these issues
are central to determining whether a Tribe satisfies the criteria for treatment as a
State. However, EPA does not intend to prescribe general criteria for what it
considers "good" tribal court systems due to the fact that there are a variety of
systems which could meet the objective stated above. Further, the effectiveness
of Tribal courts is, at least to some extent, Tribally and culturally dependent. This
guidance is therefore confined to the types of information that must be submitted
to determine a Tribe's eligibility to be treated as a State.
At a minimum, a Tribe must submit a narrative statement describing the
following aspects of its judicial system:
(a) Overview: A general overview of the judicial system and the source
of authority (e.g., Tribal constitution);
(b) Lower Court - Include information on the court structure and court
rules. If two or more Tribes seek to share program responsibilities, the
relationship between the respective Tribal courts must be specified;
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(c) Appellate Court - Information similar to that provided for the lower
court system is necessary for the Agency's understanding of the appellate
court. A description of the court structure and rule should be provided and
the appeals process described. If two or more Tribes wish to share
program responsibility, the relationship between the appellate courts and
each of the Tribes should be addressed;
(d) Penalty System - The system used to levy fines or penalties should be
described, including the statutory authority for assessing penalties, and any
minimum or maximum penalties. If available, a schedule of penalty
amounts should also be included; and
(e) Judge Selection - The process used for selecting court judges
(including minimum qualifications) should be specified. If judges are
shared through a "circuit rider" system, details of that system and
background of court officials should be provided.
In addition, the legal process, appeals procedures, and any other
legal remedies available to Indians and non-Indians should be specified.
This information is necessary to evaluate the legal rights of non-Indians in
the Tribal court system.
(f) Existing or proposed agency of the Indian Tribe which will assume
primary enforcement responsibility - [142.76(dĄ5^ and 145.56(d)(5)] The
Tribe will be required to describe the Agency of the Tribe which will
assume primary enforcement responsibility. The Tribe will be required to
submit supporting documentation which establishes the Agency and
provides a description of the authorities that the Agency is given. An
organization chart which shows the relationship of this Agency to other
Tribal Agencies will be required. This Agency must have the authority to
implement a primacy program and a statement from the Tribal Attorney
General or attorney representing the Tribe must be provided as noted
previously. EPA will determine it its review if any potential conflict of
interest exists between the regulating Agency and the owner/operator of
the public water systems or underground injection wells (See information
on this under Development Grants).
(g) Technical and administrative capabilities of the staff to administer and
manage a public water system supervision and/or an underground injection
control program - [142.76(d)(6) and 145.56(d)(6)]. The Tribe must
provide a description of the technical and administrative capabilities of the
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staff that will fill the positions in the proposed Agency. Position
descriptions will be acceptable for describing the expected capabilities. At
a minimum, the Tribe should employ individuals knowledgeable in the
areas of public health and environmental engineering and/or science.
The Indian Health Service (IHS) presently provides varying levels
of assistance to Tribes. Many of the areas hi which IHS provides this
assistance are areas a Tribe would have to take over if it is to be granted
primacy. For example, IHS currently provides plan and specification
review for Tribes and conducts sanitary surveys at Tribal facilities.
Regional Offices should recognize these IHS/Tribal agreements; however,
these agreements will need to clearly define the responsibilities of IHS and
the Tribe. The Tribe should commit to assume full responsibility for these
functions.
B. EPA Review of Treatment as a State Applications
EPA staff will review and evaluate Tribal submissions based on the regulations and this
guidance. If a Tribe's application is found to be lacking some needed materials, it should be
returned for amendment by the Tribe. A checklist of required elements is provided in
Attachment A to assist Regional staff in their review.
(1) Federal Recognition - Regional staff should obtain and keep on file the most
recent Department of the Interior Bureau of Indian Affairs (BIA) Federal Register
Notification of Federally Recognized Tribes. In the event a Tribe has been
formally recognized, but has not been included on the most recent BIA Federal
Register list, Regional staff should review the relevant correspondence that the
Tribe has received from BIA. Staff may also contact appropriate IHS and BIA
offices for confirmation of a Tribe's status.
(2) "Governing bo'dv carrying out substantial duties and powers" - The Region should
insure that the narrative statement and supporting documentation show that the
Tribe has an organized governmental body which exercises legislative, executive,
and judicial powers. The records should show an established record of orderly
government transitions and also that the government exercises and has exercised
substantial governmental duties and powers in implementing programs to promote
the health, safety, and welfare of its residence.
(3) "Functions to be exercised...are within the Tribal government's jurisdiction" -
Review of the material on jurisdiction should be agreed upon by the Office of
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Regional Counsel. It is important to recognize that the legislative history supports
Tribal jurisdiction within exterior boundaries of reservations relative to Tribal
health and welfare. Possible competing claims of jurisdiction may arise in
checkerboard areas where States feel they have jurisdiction over non-Indian
communities that have been incorporated under State statute within the exterior
boundaries of the reservation. Regional Offices should facilitate State/Tribal
meetings to resolve these situations as soon as possible. Much of the information
provided in item #2 will be applicable here.
The Tribe is required to submit a legal description and map showing the
geographic area over which it claims jurisdiction and also the location of the
water systems and/or injection wells over which it claims regulatory authority.
The Region should review the map submitted carefully along with the supporting
documentation (treaties, etc.).
The Attorney General for the Tribe or an attorney representing the Tribe is
required to submit a statement that the governmental powers and duties exercised
by the Tribe are within the authority of the Tribe. The statement must include
citations to the specific Tribal statutes, codes, resolutions, and where appropriate,
judicial decisions which demonstrate adequate authority.
(4) "Reasonably expected to be capable" - Regional staff should remember that the
decision to treat a Tribe as a State is made very early in the process of developing
Tribal programs. The standard for the capability determination is whether the
Tribe is "reasonably expected to be capable" of administering the program.
C. Time Frame for Processing Treatment as a State Application
Within thirty (30) days of receipt of a Tribe's completed treatment as a State application,
the Regional Administrator must notify the appropriate governmental entities (as discussed
below). Notice is to include information on the substance of, and basis for, the Tribe's
jurisdiction assertions. Each governmental entity so notified by the Administrator shall have 30
days to comment upon the Tribe's assertion ofjurisdiction. Comments by governmental entities
are limited to the Tribe's assertion ofjurisdiction (40 CFR 142.78 and 145.58).
It is suggested that the Regional Offices contact the State primacy agency and any
Federal governmental entities such as the National Park Service, Department of Defense, and the
Department of Energy as appropriate. The State primacy agency may wish to contact any non-
Indian communities that my be incorporated under State statute and located with the exterior
boundaries of the applicant's reservation. Regional staff should request review by the Office of
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Regional Counsel and by other water program staff (as affect other water programs)'. The
Regional Indian Affairs Coordinator may be involved as appropriate.
If no competing claim of jurisdiction is received, the Regional Office should complete
processing the application within thirty days. In the event there is a competing claim of
jurisdiction, the regulations require the Administrator to consult with the Secretary of the Interior
(or his designee) and to consider any other comments that have been received prior to making the
determination as to whether the applicant meets the treatment as a State criteria. The Region
should attempt to resolve such situations as expeditiously as possible.
HI. DEVELOPMENT GRANTS
A. Required Information .
Once a Tribe has been determined to be eligible to be treated as a State, it may apply for
federal funding to develop its program. Regional staff have to work closely with their respective
Tribes to clearly identify the various primacy program needs of each individual applicant and the
costs. As noted earlier, a Tribe must match federal funding at 25% unless it can show it does not
have adequate funds or in-kind contributions to meet this requirement. In that case, the Tribe
may be allowed to match only 10%. A Region's decision to allow only a 10% match should be
made very carefully as financial capability on the part of a Tribe is extremely important if they
are to assume primacy. As stated earlier, Tribes can use certain federal funds and/or "in-kind"
contributions to meet the match requirements.
In addition to the Tribal-specific needs the following issues must be addressed by the
Tribe in its grant application:
(1) Regulator/Regulatee conflicts must be resolved. In order to evaluate any potential
conflict of interest created by the Tribe as both the regulator and the regulatee, the
Tribe must submit an inventory of all public water systems and/or underground
injection wells to be regulated by the Tribe. The inventory must also identify the
owner of the water system and/or the injection well. If not included as part of the
treatment as a State application, the Tribe must also identify the existing or
proposed Tribal organization that will be implementing the primacy program.
The relationship between the primacy organization and the organization that
owns/operates the public water system(s) and/or the underground injection wells
must be defined and clearly explained. If there is a conflict of interest, a plan
should be included or developed to resolve this conflict.
(2) Laboratory Analyses associated with the PWSS Program - States seeking to
obtain PWSS primacy are required to establish and maintain a State program for
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the certification of laboratories conducting analytical measurements of drinking
water contaminants. The regulations at 142.10(b)(3)(ii) state that: "Upon a
showing by an Indian Tribe of an intergovernmental or other agreement to have
all analytical tests performed by a certified laboratory, the Administrator may
waive this requirement."
It is the responsibility of the owner/operator of the public water system to
insure that samples are analyzed by a certified laboratory. In some cases, the
Tribe may be the owner/operator of the system. In other cases, the Tribe may
choose to take on the responsibility of sample analysis for the public water system
as is the case in some States. In all cases, it is necessary for the Tribe to have
access to a certified laboratory to insure that special sampling and analysis can be
conducted.
Therefore, as a part of a development program, the Tribe must submit an
explanation of the type of sampling it intends to do. the Tribe must also submit a
copy of a contract with a certified laboratory which specifies the type of analyses
to be performed. Multiple contracts are acceptable where one laboratory cannot
perform all required analyses. EPA will review the contracts to ensure that the
laboratory is certified by either the State or EPA and that analyses for all regulated
contaminants can be conducted.
(3) Criminal enforcement authority (UIC Program) - Tribes are not required to have
criminal enforcement capability to qualify for treatment as a State [SDWA
Section 1451 (b)(2)]. This is not a major concern in the PWSS program as the
only criminal violation is tampering with public water systems (See SDWA
Section 1432). The UIC program, however, has authority under SDWA Section
1423 to bring criminal actions for willful violations. The UIC primary
enforcement responsibility regulations at 145.13(e) state that to the extent that a
Tribe does not have or is precluded from asserting criminal enforcement authority,
the Administrator will assume primary enforcement responsibility for criminal
violations. Further, 145.13 requires that the Memorandum of Agreement (a
requirement for primary enforcement responsibility described in 145.25) spell out
provisions for referring criminal violations to EPA. [For additional details and a
further discussion of enforcement activities in general, see the next section on
enforcement Activities.]
The Tribal authority to pursue criminal actions is complicated. Tribes
have criminal authority over Tribal members but their criminal authority over
Indians who are not members of their Tribe is not always clear. Tribal criminal
authority over non-Indians is precluded by the Supreme Court's decision inn 1978
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in the Oliphant v. Suquamish Indian Tribe case. Therefore, the Regions must be
sufficiently flexible on this issue to accommodate different procedures for
criminal actions against Tribal members, non-Tribal Indians, and non-Indians.
(4) Enforcement activities (both PWSS and UIC programs) - The Tribe must develop
a compliance and enforcement strategy and an enforcement agreement with EPA
which spells out its response to violations of the SDWA, of the National Primary
Drinking Water Regulations, or of its own regulations. The
compliance/enforcement strategy should also discuss the anticipated use of
penalties and other sanctions to address violations, and the approach used to
calculate civil penalties should be defined. [Note: EPA expects a reasonable
effort to calculate the economic benefit of noncompliance and to remove that
benefit by assessing a penalty.] The compliance strategy should be consistent
with EPA's PWSS and UIC Compliance Strategies (4/1/87) and other EPA
enforcement policies. EPA will review the documents to ensure this. Regional
staff should consult with their PWSS or UIC Enforcement Coordinators to ensure
consistency hi enforcement policies and approaches.
The Tribe must also have (or develop) the mechanisms to restrain
immediately and effectively any person engaging hi any unauthorized activity or
operation which is endangering or causing damage to public health or the
environment (as related to the PWSS or UIC program requirements). The Tribal
agency administering the program must also have the means to sue in courts of
competent jurisdiction to prohibit any threatened or continuing violation of any
program requirements and to assess or recover civil penalties as required by
142.10 for the PWSS program and 145.13 for the UIC program. The
compliance/enforcement strategy should explain these mechanisms also.
The Tribe is responsible for ensuring that the tribal counsel, Tribal
Attorney-General, or appropriate Tribal officers/staff are properly notified and
consulted about planned enforcement actions at the Tribal or Federal level. The
compliance strategy (or Memorandum Agreement) should lay out this process.
Federal Facilities will be treated in the same manner as non-Federal
facilities. The Regional Water Division Director should be notified on a case-by-
case basis of each proposed enforcement action against a Federal facility.
As noted in the previous section, criminal actions may be
appropriate in certain circumstances. In the PWSS program, SDWA Section 1432
allows for the filing of criminal charges for tampering or attempting to tamper
with a public water system. In the UIC program, SDWA Section 1423 allows for
14
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WSG45
the filing of criminal charges for willful violations of any requirement of an
applicable UIC program. In both programs, deliberately making false statements
to the Federal government is a criminal offense. In the compliance strategy,
enforcement agreement, or Memorandum of Agreement (UIC Program), the Tribe
should set forth hs criminal authority over Tribal members and over non-Tribal
members. In those instances where the Tribe lacks criminal authority, the Tribe
must commit to referring the case to the appropriate Regional office within a
reasonable time. This requires submission to the Water Division Director of all
pertinent information and continued coordination with EPA and the submission of
additional information as it becomes available. Specific procedures for the
handling of criminal cases should be developed. As note earlier, these procedures
must be in the Memorandum of Agreement for the UIC program; for the PWSS
program, they can be in any document.
B. EPA Review
Regional Staff should conduct a careful review of all materials submitted with a
development grant application. In addition, previous years' performance in meeting
commitments should be carefully considered before another year's funding is awarded. The
following guidance is provided to help the Regions in their review.
(1) Regulator/Regulatee conflicts - In the event a Tribal application does not
adequately identify a resolution of a regulator/regulatee conflict, Regional staff
may suggest the following possible actions to minimize potential conflicts.
If the Tribe needs to establish an agency or department to implement the
program, the Tribe should not place this agency within the same
division/organization as any Tribal agency responsible for operating public water
systems or underground injection wells. Where a responsible agency already
exists in the same division/organization, the Tribe should consider moving it, or
the Tribe should submit a description of the enforcement procedure to be followed
when a potential or actual conflict exists.
(2) Laboratory Analyses - Regional Staff should obtain a copy of the contract or
agreement ensuring access to a State or EPA certified laboratory or laboratories.
(3) Criminal Enforcement - Regional staff from both the Office of Regional Counsel
and the Water Division will be involved from the beginning in developing the
necessary Memorandum of Agreement; hence, the review process will be
continual.
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WSG45
(4) Compliance Strategies - Regional staff will be involved in the development of
these over the course of the grant and so review will be continual.
In addition to the specific issues, the checklists in Attachment C provide models as to
development grant goals and timeframes. Regional staff may modify these as appropriate to
specific situations; however, what is important is that all the elements of a primacy program be
developed by the end of the development period.
Once a development grant has been awarded, the Tribe has three years hi the PWSS
program and four years in the UIC program to assume primacy. During this developmental
stage, EPA staff need to work closely with Tribes to ensure that
commitments are being met and the program is developing properly.
IV. PRIMACY
A. Required Information
The requirements for primacy are specified hi 40 CFR Part 142 for the PWSS program
and in 40 CFR Part 145 for the UIC program. Tribes applying for primacy must meet these
requirements and must follow the same procedures as States. [Note: as stated earlier, the PWSS
primacy regulations are currently being revised. It is anticipated that a final regulation will be
published in July 19889. Tribes applying for primacy after that date will be required to comply
with the new regulation.]
B. EPA Review
The majority of the review and negotiations with the Tribe will be performed by the
project officer hi the Regional Drinking Water Branch. After a preliminary determination that
the Tribe has met all of the requirements, the Drinking Water Branch should forward the
application to the Office of Regional Counsel and to Grants Administration for review. (The
Region should follow established Regional procedures in this matter. Other offices may be
involved as the Region feels is appropriate.)
When the Region believes that the application is final, they should send it to
Headquarters for final review and approval.
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WSG45
Attachment A
Page 1 of3
TREATMENT AS A STATE CHECKLIST
Treatment as a State Criteria
Material to be Submitted
Acceptable
(see comments)
Unacceptable
(see comments)
Not Submitted
(see comments)
1. Federal Recognition
Copy of the appropriate BIA Federal
Register notification (or other
documentation showing Federal
recognition
2. Possesses and exercises
substantial government
duties and powers.
(a) Sources of governmental
authority identified.
(b) Description of the
organizational structure of the
Tribe including the powers
exercised by each
governmental entity —
executive, legislative, and
judicial.
(c) Description of the programs
that the Tribe has instituted to
promote the health, safety,
and welfare of the Tribal
members.
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WSG45
Attachment A
Page 2 of3
TREATMENT AS A STATE, (cont'd.)
Treatment as a State Criteria
3. Tribal Capability
Material to be Submitted
Note: You need not repeat information
already provided in 2(b).
(a) Description of existing managerial
capabilities emphasizing successful
managerial performance of public
health programs:
(1) Summaries of
grants/contracts and
associated evaluations.
(2) Summary of each
environmental health
program managed and the
entity that manages it
(3) Description of accounting
and procurement systems.
(4) Description of Tribal
agency that will assume
primacy, including
discussion of regulator/
regulatee conflict
(b) Description of Tribal court system
Acceptable
(see comments)
Unacceptable
(see comments)
Not Submitted
(see comments)
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WSG45
TREATMENT AS A STATE, (cont'd.)
Attachment A
Page 3 of3
Treatment as a State Criteria
4. Tribal Jurisdiction
Material to be Submitted
(a) A map defining exterior
boundaries of the
reservation. (ForSDWA
programs include location
of public water systems
and underground injection
wells).
(b) Signed statement from the
Tribal Attorney General
(or the corresponding
official) that the
governmental duties and
powers exercised by the
Tribe are within the
authority of the Tribe.
Acceptable
(see comments)
Unacceptable
(see comments)
Not Submitted
(see comments)
Regional Comments:
19
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Attachment B
TREATMENT AS A STATE APPLICATION PROCESS
Tribe Submits Treatment as a State
Application
within 30 days 142.76 (PWSS)
145.58 (UIC)
Regional Administrator notifies
"appropriate governmental entities."
within 30 days 142.76 (PWSS)
145.58 (UIC)
Appropriate governmental entities
submit comments (to be limited
to program specific jurisdiction).
"in a timely manner" 142.76 (PWSS)
145.58 (UIC)
Regional Administrator notifies Tribe of
eligibility to apply for grants.
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WSG45
Attachment C
Suggested Development Grant Goals for the PWSS and UIC Primacy Programs
Tribal applicants must commit to assuming primacy enforcement responsibility within
the designated 3-year period for PWS and/or 4-year period for UIC. The commitments in the
development grant agreements will also have to be negotiated on a case-by-case basis for each
Tribe; however, the following goals and time frames are suggested for Regional use in
discussions with their Tribes.
Public Water System Supervision Program
Year #1 Goals
Signed Drinking Water Statute addressing at least the public water system
program;
Codified regulations (Tribal codes) at least as stringent as Federal regulations;
Regulations (Tribal Codes) developed to ensure public participation;
Public notification procedures developed;
Hire technical staff as needed;
Resolve any regulator/regulatee conflict;
Sanitary survey protocols/procedures developed;
Data processing/recordkeeping procedures established;
Year #2 Goals
Evaluate previous year's performance;
Memorandum of Understanding* (including referral of criminal matters as
necessary);
Analytical requirements addressed;
Quality assurance plan developed and approved;
Compliance tracking system developed;
Variance and exemption policies defined;
Compliance and enforcement strategy developed.
* Final guidance on the development of the necessary Memorandum of
Understanding is still being developed.
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WSG45
Year #3 Goals
Evaluate previous year's performance;
Demonstrate capability to administer the program effectively.
Underground Injection Control Program
Year #1 Goals
Signed Drinking Water statute addressing at least underground injection
control;
Codified regulations (Tribal Codes) for protection of underground sources of
drinking water (USDWs) at least as stringent as Federal regulations;
Inventory of UIC wells;
Develop regulations (Tribal codes) to insure public participation;
Hire technical staff as needed;
Establish data handling/record keeping procedures.
Year #2 Goals
Evaluate previous year's performance;
Complete adoption of necessary statute and regulatory requirements;
Develop compliance tracking procedures;'
Develop compliance and enforcement strategy;
Train inspectors as needed;
Draft program description;
Update inventory.
Year #3 Goals
Evaluate previous year's performance;
Complete program description;
Memorandum of Understanding* (including referral of criminal matters as
necessary);
Submit copies of all pertinent UIC statutes and regulations;
Gain experience running portions of the UIC program;
Update inventory.
* Final guidance on the development of the necessary Memorandum of
Understanding is still being developed.
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WSG45
Year #4 Goals
Evaluate previous year's performance;
Submit formal request for program approval;
Tribe continues to gain experience running portion of program;
Update inventory;
Demonstrate capability to administer program effectively.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG46
Date Signed: April 25,1989
MEMORANDUM
SUBJECT: Additional Guidance on Implementing the Indian
Primacy Rule for the PWSS and UIC Programs
FROM: Robert J. Blanco, Director (signed by Robert J. Blanco)
State Programs Division
TO: Drinking Water Branch Chiefs
Regions I - II and IV - X
In earlier guidance documents, I have asked that you work with the Tribes in your Region
which you feel have the most potential for meeting the treatment as a State criteria as set forth in
the Indian Primacy regulations. Further, I have sent you a copy of our draft guidance on the
regulation which explains in some detail the treatment as a State requirement as the
documentation/information a Tribe would need to submit. We have not, however, given you any
specific guidance on several important issues including how to target Tribes for your attention,
how to evaluate certain aspects of Tribal capability or potential capability, the delegation of
authority for treatment as a State determinations, and funding available to Tribes. This
memorandum and its attachments address these questions.
My staff will be contacting you shortly to discuss how the implementation of this rule is
proceeding. We will need some specific information including:
(a) a list of the Tribes that have submitted treatment as a State application so far and
those that you anticipate will submit them during the remainder of FY 1989;
(b) a list of the Tribes that have submitted development grant applications and the
amounts;
(c) a list of the Tribes that you anticipate will submit grant applications this fiscal year
and, if available, an estimate of the amount;
(d) activities carried out to implement the rule; e.g., meetings held, training conducted.
We are anticipating oversight hearings on Indian issues in May and we must be able to
explain how we are implementing the rule.
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WSG46
Thank you for your cooperation in these efforts. Should you have any questions or wish
to discuss this further, please call Betsy Devlin (FTS 382-2303) for the PWSS program or Don
Olson (FTS 382-5558) for the UIC program.
Attachments
cc: Jeffrey Hass
Randy Hill, OGC
Rich Freeman, Region V
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WSG46
Attachment A
Targeting Tribes and Evaluating Tribal Capability
In order to decide which Tribes to target for your efforts this fiscal year, I encourage you
to carefully read the Preamble to the final Indian Primacy regulation (53 FR 37396, September
26,1988), the regulation itself, and the draft guidance on the Indian primacy rule. These
discussions in these documents describe the criteria for meeting treatment as a State and the
development grant requirements as well as EPA's rationale for these. The Preamble also contains
a good discussion of the issues surrounding the rule and may answer many of the questions
which are arising as we begin to implement this rule. In addition, based on your work with the
Tribes you may have an idea of which ones are in fact interested in applying for treatment as a
State and a development grant in the PWSS or UIC programs.
Since funding for development grants is limited, I believe that you should prioritize the
Tribes in your Regions for your attention. I suggest that hi your deliberations on which Tribes to
target, you consider the following:
1. Size of the Tribe, including land area, population, and number of public water systems
and/or number and class of injection wells;
2. Existing administrative and political structure — for example, the existence of a
department dealing with environmental issues;
3. Previous experience dealing with the federal government, including experience with
federal grants;
4. Extent of drinking water problems which could be more efficiently solved if the local
authorities (and not the federal government) were running the PWSS program;
5. Existing technical expertise;
6. Tribal interest hi administering a PWSS and/or UIC program; and
7. Anticipated grant award date and number of months remaining hi the fiscal year.
Those Tribes with the highest rating on these factors will be the best candidates for
treatment as a State and for receiving grants to develop PWSS or UIC programs.
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WSG46
Attachment B
Discussions Required bv the Indian Primacy Regulation and Delegations of Authority to Make
those Determinations
In implementing the Indian primacy rule, there are three separate determinations which
may be made:
(1) Whether or not a Tribe meets the criteria for treatment as a State;
(2) Whether or not a Tribe will receive a development grant; or
(3) Whether or not a Tribe meets the requirements for primary enforcement responsibility
for the PWSS or UIC programs.
The authority to determine whether a Tribe meets the treatment as a State criteria has
been delegated to the Regional Administrator. Headquarters will review and concur on the first
determination for each program (i.e, the first PWSS and the first UIC in each Region).
Please remember that a determination that a Tribe meets the treatment as a State criteria
does not require EPA to award a grant to a Tribe nor to grant it primary enforcement
responsibility. However, under the PWSS and UIC Indian primacy regulations a Tribe must
meet treatment as a State criteria in order to be eligible to receive a development grant.
The second decision is whether or not to award a Tribe a development grant. According
to our regulations, a development grant may only be awarded if a Tribe: (1) has met the
treatment as a State criteria; (2) has or agrees to establish a PWSS or UIC program within the
required timeframes (three years for PWSS and four years for UIC); and (3) agrees to assume
primacy within that time period. Further, we stated in the preamble that in reviewing
applications for development grants, we would evaluate a Tribe's capability to administer a
program and we would require a development plan. Consistent with this, you should review all
aspects of a Tribe's capability — including financial capability — at this time. You may make a.
determination that such a Tribe is too small or lacks so much of the technical expertise needed to
administer a program that it is not possible for EPA to award them a development grant. Such a
decision is within your discretion as the authority to award development grants is already
delegated to the Regional Administrators.
The final decision to be made in this process is on the application for primary
enforcement responsibility itself. These applications should be reviewed in the same manner and
with the same degree of stringency as we would review State applications. A Tribe must meet all
primacy requirements for the program for which it is applying as specified in the statute or
regulations. As with State primacy applications, Headquarters concurrence is required.
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WSG46
Attachment C
Funding for PWSS and UIC Grants to Indian Tribes
As you know, the Indian primacy regulations state that up to 3 % of the PWSS State grant
funds and up to 5 % of the UIC State grant funds shall be reserved each year for use on Indian
lands. It is our policy that these funds should remain available as long as possible for use in
grants to Tribes. .Therefore, we will hold funds until June of the year in which the appropriation
expires. At that time, unused funds will be reallocated for other purposes. For example, FY
1988 funds will be reallocated in June 1989 and FY 1989 appropriation funds will be reallocated
in June 1990. Additional details on the reallocation process will be sent to you under separate
cover.
We have been asked many questions about the appropriate size of a development grant.
At this time, it is not possible to give definitive guidance on this subject. However, you should
keep in mind the factors listed on page 2 of this memorandum (land area, population, number of
water systems or injection wells, previous experience in managing an environmental program,
etc.). In addition, from your experience in working with the States and with the Tribes, you
should be in a good position of determining the level of funding it will take to develop a primacy
program. Finally, you should keep in mind the amount of money the existing State grant formula
would allocate to Tribes. This is not an upper limit, but may give some idea as to what may be
expected in federal funding if all Tribes applied for and received primacy.
In the future when we gain some experience with' development grants for Tribes, we may
be able to lay out more definitive criteria for determining the size of development grants.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG47
Date Signed: August 18,1989
MEMORANDUM
SUBJECT: Implementation and Enforcement of the Lead
Prohibition and Lead Public Notification
Requirements of the Safe Drinking Water Act in
Fiscal Years 1990 .and Beyond
FROM: Michael B. Cook, Director (signed by Robert J. Blanco)
Office of Drinking Water
TO: Water Management Division Directors
Regions I - X
Several questions have arisen about the implementation and enforcement of the lead ban
and lead public notification requirements of Section 1417 of the Safe Drinking Water Act
(SDWA) for fiscal years 1990 and beyond. Lead is one of the four contaminants to which the
Office of Drinking Water has assigned a high priority due to the significant health risk caused by
exposure to this contaminant. The lead ban in Section 1417 of the SDWA is one of the primary
mechanisms through which exposure to lead can be controlled and public health can be
protected. It is crucial, therefore, that we convey to the States the importance we place on
implementing and enforcing the requirements of Section 1417. The purpose of this
memorandum is to clarify our expectations in this regard.
Detailed guidance on this subject was provided to the Regions last October; however, it is
important to restate and elaborate on some of the fundamental principles contained in that
guidance. The most important item is that in FY 1990 and beyond, the States must demonstrate
effective implementation and enforcement of the lead ban. The Regions must evaluate this
demonstration; if the State's program is unsatisfactory, they are to withhold five percent of the .
State's program grant.
Before discussing the FY 1990 requirements. I will briefly review the other items noted
in the October 4,1988 Guidance.
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WSG47
A. Statutory Authority
Section 1417f a) of the SDWA prohibits the use of any pipe, solder or flux which is not
"lead free" in the installation or repair of any public water system or in any plumbing hi a
residential or nonresidential facility providing water for human consumption which is connected
to a public water system.
Section .l_417(a)(2) requires each public water system to identify and provide notice to
persons who may be affected by lead contamination of their drinking water and specifies the
contents of the public notification. EPA promulgated final regulations on October 28,1987 to
implement this provision (40 CJES 141.31).
Section 1417fb1 provides that the prohibition on the use of lead in public water systems
and the public notification requirements shall be enforced in all States as of June 19,1988. The
section further specifies that the States shall enforce the lead prohibition through State or local
plumbing codes, or other means of enforcement as the State may determine to be appropriate.
Section 1417 (c) authorizes EPA to withhold up to five percent of a State's Section
1442(a) public water system supervision (PWSS) program grant if the Administrator determines
that the State is not enforcing the lead prohibition or the lead public notification requirements.
B. Approach
It is EPA's policy to use its statutory authority to withhold the full five percent of a State's
grant if the State is not meeting the requirements of Section 1417.
C. Status of Implementation in FY 1989
In FY 1989, in order for a State to receive its full PWSS grant, the State was required to
submit to EPA a certification describing: (1) its lead ban and whether it covered the entire State;
and (2) the procedures the State used or was using to implement the lead public notification
requirements. The Regions were to review this certification and other available information
against the requirements of the SDWA and the October 4,1988 Guidance to determine whether
to approve the certification. The certification had to be submitted to EPA by March 31,1989.
Currently, all States have approved certifications in place, with the exception of
Pennsylvania. However, it has come to our attention that in some cases the State lead bans
themselves may not meet the minimum federal statutory criteria; that is they do not cover pipe,
solder, and flux, or they don't cover the entire State. Given this situation, the Regions should
carefully review the certifications they have approved. If the lead bans do not meet the statutory
criteria described above, the Region should immediately notify the State and see that a corrective
action is initiated as soon as possible. If the State is unwilling or unable to correct a deficiency
hi its lead ban, then the Region is to withhold five percent of the State's FY 1990 PWSS grant.
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WSG47
Additionally, we are very concerned about the low rates of compliance with the public
notification requirements in many States. Failure by the State to enforce the public notification
requirements is to result in the withholding of grant funds in FY 1990 as described below.
D. Implementation in FY 1990 and Bevond
In FY 1990 and beyond, two items are required: an initial certification (as described in
Section C) and a demonstration of effective implementation and enforcement of the lead ban and
the lead public notification requirements. This section will discuss each of the requirements and
possible mechanisms for obtaining this information.
1. Effective Implementation and Enforcement.
The States should provide the Region information which demonstrates that the
requirements of the lead ban/lead public notification regulations are being uniformly and
effectively enforced throughout the State and that violations are being acted upon. The
information should include:
(a) Any changes in laws, regulations, or ordinances which may affect
the lead ban program (i.e., the lead ban itself and the lead public
notification requirements);
(b) A summary of public notification compliance which includes the
number of systems that have complied with the public notification
requirements and the percent of the State's population these
systems serve. In those States which have systems which have not
complied with the public notification requirements, the State
should submit a description of the activities it is taking to
follow-up with those systems.
(c) A summary of State lead ban program compliance and
enforcement activities, including a description of the mechanisms
•used to enforce the lead ban and the level of enforcement activity.
(d) A description of activities related to the lead ban program and
public outreach and educational activities planned for the coming
fiscal year, and highlights of those activities for the past year.
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WSG47
2. Evaluation of State Submissions
Regions should review the information submitted to determine whether or not the State is
effectively implementing and enforcing the lead ban and lead public notification provisions.
Because each State may choose how to implement the program it is difficult to give nationwide
evaluation criteria; however, the following is a list of some elements to consider:
Is it clear from the State submissions) which organizations) are
responsible for overseeing the lead ban/lead public notification programs?
Do these organizations have the authority and/or the capability to
effectively implement the program?
How many "spot-checks" of compliance with the lead ban has the State
performed? What were the results? How many violations found were
acted upon by the State? If the State has performed no "spot-checks" or
has not acted upon violations, how can this be effective enforcement and
implementation?
How many enforcement actions for violations of the lead ban or lead
public notification requirements has the State taken? Were these actions
stringent enough to deter future violators? If the State has not taken any
enforcement actions, how can the State claim an effective enforcement
program?
What is the level of compliance with lead public notification
requirements? How have the States dealt with noncompliance?
What specific outreach activities (other than public notification for
systems which have not complied with the lead public notification
requirements) has the State conducted? If the State has done none or has
put forth only a minimal effort, how can it claim an effective program?
Is the Region aware of any information which sheds doubt on the
effectiveness of the State lead ban program? Have you brought such
concerns to the State?
These questions may help to focus your review of the State submissions. If, in your
judgement, a State has not demonstrated effective implementation and enforcement of the lead
ban/lead public notification requirements, then five percent of the State's grant should be
withheld.
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WSG47
3. Mechanisms/Timing for the Regional Determination of Adequate
Implementation and Enforcement and the Resulting Grant Decision
The Region may use whatever mechanism it believes appropriate to obtain the
information from the State and make its determination on the adequacy of the State's lead ban
program. Although the details are left to Regional discretion, the Regions are to begin FY 1990
by making it clear to their States that 5% of the State's FY 1990 PWSS grant is dependent on
adequate implementation and enforcement of the lead ban.
The approach which we would prefer the Regions take would be to negotiate an
acceptable lead ban implementation program with each State and include this program in the
State's FY 1990 workplan. The Region, at the beginning of the fiscal year, would hold 5% of the
State's PWSS grant in reserve, and would inform the State that it will be evaluated on its lead ban
program at midyear evaluations. If the State is adequately implementing the program, it will
receive the remaining 5% of their program grant.
If a Region feels strongly, however, that withholding 5% of the State's grant at the
beginning of the year would damage their relationships with their States, they may award the full
grant and make implementation and enforcement of the lead ban an express condition of the
grant. We suggest the following wording: The State Primacy Agency will implement and
enforce the lead ban and the lead public notification requirements of Section 1417 of the Safe
Drinking Water Act in accord with EPA guidances. If the State Primacy Agency is not the
agency responsible for the lead ban, it will provide EPA with a demonstration that the lead ban
and lead public notification provisions of the SDWA are being implemented and enforced in the
State. If the State fails to perform this task, EPA will withhold (or if all funds have been
awarded, deobligate) 5% of the total amount of the State's grant.
As noted above, the Region may use any mechanism or combination of mechanisms it
believes appropriate to the situation. The FY 1990 Office of Water Accountability System
(OWAS) measures contain an item on the implementation of the lead ban; we will focus on this
during our midyear evaluations of the Regions.
I believe that effective implementation of Section 1417 of the SDWA is critical. It is
essential that the Regions send the right message to their States; that is, that EPA is serious about
enforcement and implementation of the lead ban and that we simply cannot accept a program
which is not meeting the requirements of the SDWA.
I hope that this guidance is useful. I recognize the problems that you are having in trying
to oversee the implementation of Section 1417 and urge you to continue your efforts.
cc: Drinking Water/Groundwater Protection Branch Chiefs
Regions I - X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG48
Date Signed: September 1989
General Public Notification for Public Water Systems
" This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
570/9-89-002
NTIS#:
PB93-167096
ERIC#
G360
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG49
Date Signed: October 1989
Guidance Manual for Compliance with the Filtration and Disinfection Requirements for
Public Water Systems Using Surface Water Sources
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
570/9-89-018
NTIS:
PB90-148016
ERIC:
G117
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 50
Date Signed: November 15,1989
MEMORANDUM
SUBJECT: Implementation of Enforcement Provisions in the EPA Federal
Facilities Compliance Strategy
FROM: Edward E. Reich (signed by Edward E. Reich)
Acting Assistant Administrator
TO: Deputy Assistant Administrators
Deputy Regional Administrators
The EPA Federal Facilities Compliance Strategy (i.e., the "Yellow Book") was signed by
the EPA Administrator in November, 1988. The Strategy is the primary EPA policy and
guidance document which outlines our approach for understanding compliance monitoring and
enforcement activities at Federal facilities. The provisions of the Strategy became effective
immediately but there are certain items which require more detailed follow-up guidance to ensure
that they are consistently implemented across all media programs and Regions. The following
enforcement-related provisions are in need of additional guidance to ensure proper
implementation of the Federal facilities program:
(1) applicability of media "timely and appropriate"
guidelines for Federal facilities; '
(2) program definitions of what constitutes "formal
enforcement actions" for Federal facilities; and
(3) submission of Federal facilities enforcement actions
to EPA Headquarters.
o "Timely and Appropriate" Enforcement Guidance
The Strategy clarifies that the media program "timely and appropriate" enforcement
response timeframes apply fully to Federal facilities. The guidance emphasizes the negotiation
of either consent orders or compliance agreements within the required media-specific timeframes
for issuance of formal enforcement actions. Program guidance should specify that where EPA
has statutory administrative order authority for Federal facilities, consent orders will be the
preferred enforcement mechanism and, where such authority does not exist, compliance
agreements will be utilized. Chapter VI, Section B.l.c. of the Strategy further clarifies that "if
compliance is not achieved or a compliance agreement or consent order cannot be negotiated
1
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WSG50
within required media-specific timeframes, EPA generally will issue a proposed order or
proposed compliance agreement..." This is the equivalent of the point in the enforcement process
where EPA normally would issue a unilateral administrative order or a referral for a non-Federal
entity. A "proposed consent order" or "proposed compliance agreement" should contain the
same type and level of information as a unilateral order; e.g., schedules for achieving
compliance, corrective actions which need to be taken, reporting requirements, etc. It represents
EPA's "bottom line" to the Federal facility on what it expects them to do to correct the violation
and the desired timeframes for accomplishing the fix. The procedures and timeframes for
negotiation and issuance of proposed compliance agreements or proposed consent orders are
explained in detail in Chapter VI, Sections B.I .d. and e of the "Yellow Book." Each media
program compliance office needs to revise its "timely and appropriate" guidance to clarify that
the timeframes for achieving compliance and issuing enforcement actions apply to Federal
facilities the same as all other regulated entities.
o Definition of "Formal Enforcement Action"
For accountability purposes, however, there are some differences for Federal facilities in
terms of what constitutes a "formal enforcement action" since there are constraints on EPA's
ability to issue unilateral orders to Federal facilities. There are two ways for EPA Regions to
meet the definition of formal enforcement for Federal facilities actions:
(1) Negotiation of a consent order or compliance
agreement signed by both the EPA Region and the
affected Federal facility within the applicable
media-specific timeframe for formal enforcement
action; or
(2) Issuance of a proposed consent order or proposed
compliance agreement to the Federal facility when
the applicable timeframe has expired and
subsequent escalation and formal referral of the
dispute to EPA Headquarters for resolution.
As outlined in Chapter VI, B.l.f. of the Strategy, "the formal referral shall be sent to EPA
Headquarters within 60 days after the established media timeframe for formal enforcement action
has been exceeded and the Federal facility has failed to sign a proposed order or proposed
compliance agreement." Where necessary, Headquarters media program offices should revise
their existing "timely and appropriate" guidance so that the Regions are getting proper credit for
formal enforcement actions at Federal facilities for accountability purposes, even if such actions
may be different than those EPA would take at non-Federal facilities.
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WSG 50
o Submission of Enforcement Actions to Headquarters
The Strategy requires that the Regional media program offices submit copies of all EPA
Federal facilities enforcement actions to EPA Headquarters. EPA has instituted this process to
enable Headquarters offices of other agencies to become aware of violations at their facilities in a
timely manner. This should help to ensure that appropriate pressure can be provided to help
correct identified problems as expeditiously as possible.
This reporting requirement has been set forth in the Federal Facilities Compliance
Strategy, Chapter V, Section C.2 "Regional Reporting of Inspection and Enforcement Activities
at Federal Facilities," as follows:
EPA's Regional media program offices will submit copies of
NOV's and other enforcement actions issued to Federal facilities to
EPA Headquarters. This information will be submitted to the
appropriate Headquarters media enforcement office with copies
sent to the Office of Federal Activities and the Regional Federal
Facilities Coordinator. EPA will formally transmit this
information to the Headquarters offices of the affected Federal
agencies. Arrangements shall be made between OFA and each
EPA media program regarding how and when this information
shall be transmitted to the other Federal agencies. The transmittal
shall explain that they have a compliance problem or violation at
one of their facilities and request that they take appropriate action
to help expedite resolution and correct the identified violation.
Through our review of media program compliance data bases and SPMS reporting, we
are aware of over 100 notices of violation (NOV's) and other enforcement actions that were
issued to Federal facilities during the first two quarters of FY '89 and yet OFA Headquarters has
received only a handful of copies of these actions from the Regions. The Regional offices need
to implement this "Yellow Book" requirement immediately. At a minimum, the media program
offices should provide copies directly to the Regional Federal Facilities Coordinator, who will
subsequently transmit them to OFA.
In addition, we are requesting that each Headquarters media program office instruct its
Regional offices in writing to send copies of all EPA enforcement actions for Federal facilities to
their respective Headquarters compliance offices and OFA. We will discuss with the media
program offices OFA's plans to send copies to the Headquarters offices of the effected Federal
agencies. OFA will include these copies with its Quarterly Compliance Status Reports (QCRS)
(Attachment 2) which it has already begun to transmit to each Federal agency. These QCSR's
consist of name lists of all RPA and State inspections conducted, violations identified, and
enforcement actions taken at their agency's facilities during the preceding quarter. Including
hard copies of enforcement actions should help the Federal agency headquarters offices gain an
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WSG50
improved understanding of the exact nature of the problem and violation which has occurred.
This should assist them in both the general oversight of their facilities and in providing timely
assistance to correct the identified violations.
Another related area in need of clarification is the referral process for Federal facilities
disputes being transmitted from the Regions to EPA Headquarters, hi the Strategy, Chapter
VLB.l.f — "Federal Facilities Dispute Resolution Process," explains that disputes are to "be
formally referred by the Regional Administrator to the Assistant Administrator (AA) for the
affected media program and the AA for Office of Enforcement and Compliance Monitoring."
These are considered to be joint referrals to both the lead media program office and OECM. To
date, we have had some problems with RA referrals coming solely to the media AA. This
procedural flow needs to be corrected for all future Federal facilities referrals. It also is
important to emphasize that these Federal facilities referral packages should be equivalent to
civil judicial referrals which the Regions prepare for non-Federal cases. As outlined in the
"Yellow Book," the referral package should describe the identified violation, provide a historical
summary of the communications and negotiations with the facility, identify enforcement actions
taken (including any State or citizen actions), identify the unresolved issues and include
appropriate support data, with documentation similar to a litigation report. The referral package
must be signed by the EPA Regional Administrators.
One final area that needs to be re-emphasized is the need to continue to track the
compliance status of Federal facilities as a separate component in each media program
compliance database and tracking system (e.g., SPMS, HWDMS, OWAS, etc.). Some programs
already track Federal facilities separately through SPMS and their other tracking systems. Those
programs which currently do not track Federal facilities compliance status separately from other
types of regulated entities (e.g., industrial and/or municipal) need to do so as soon as practicable.
Each Headquarters program office is requested to provide a written response to this
memorandum explaining how it has addressed or plans to address the issues discussed above in
their program guidance. Please provide this response to us by November 30.1989. The .
Regional media program offices should begin providing copies of Federal Facilities enforcement
actions to their Regional Federal Facilities Coordinators immediately. If you have any questions
or would like to discuss these issues prior to your written response, please contact me or Jim
Edward, Deputy Director, Federal Facilities Compliance Staff, FTS-382-3270.
Attachment
cc: Richard Sanderson, Director, OF A, OECM
Bruce Diamond, Director, OWPE, OSWER
Jim Elder, Director, OWEP, OW
Mike Cook, Director, ODW, OW
John Seitz, Direct, SSCD, OAR
Gus Conroy, Director, OECM, OPTS
Regional Federal Facility Coordinators
Attachment could not be located. Please contact EPA staff person mentioned in document.
*Note: May need to be updated due to changes in 1996 SDWA Amendments.
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WSG51-60
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG51
Date Signed: December 1,1989
MEMORANDUM
SUBJECT: Region V's Approach on Unregulated Contaminant Public
Notification Requirements
FROM: Michael B. Cook, Director (signed by Michael B. Cook)
Office of Drinking Water
TO: Joseph F. Harrison, Chief
Safe Drinking Water Branch
In response to your October 4 memorandum concerning the Region's interpretation of the
public notice requirements for unregulated contaminants (40 CFR 141.35(d)), the approach you
have developed is consistent with the intent of the regulation. There is one issue, however, that I
would like to clarify.
I have no problem with the approach as it relates to systems that have not detected any
unregulated contaminants. If a State chooses to incorporate this interpretation in its regulations,
however, the regulations must require that a Statewide press release only be used when no
unregulated contaminants are detected. Furthermore, the Statewide press release must include
the provision that monitoring data be open to public review.
In your memo you stated that you "fully support a public notification requirement when
an unregulated contaminant is detected." You did not specifically mention that your States will
follow the required public notice requirement if any unregulated contaminant is detected. Any
system that detects an unregulated contaminant must be required by regulation to provide
individual notice to persons served by the system. Please call me if you have any questions.
cc. Regional Water Branch Chiefs, Regions I - X
S. Lepow, Associate General Counsel for Water
Regional Counsels, Regions I - X
*Note: This guidance may need to be updated after revisions to 40 CFR 141.35 are
complete in August 1999.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG51A
Date Signed: October 4,1989
MEMORANDUM
SUBJECT: Unregulated Contaminant Public Notification Requirements
FROM: Joseph F. Harrison, Chief (signed by JFH)
Safe Drinking Water Branch (5WD-TUB-9)
TO: Michael B. Cook, Director
Office of Drinking Water (WH-550E)
We in Region V would like to express our concern regarding the requirement for public
notification of the availability of unregulated contaminant results, as promulgated under 40 CFR
141.35(d). This regulation requests public water supply owners/operators to notify consumers of
the availability of the results of the unregulated contaminant monitoring, even if the analyses
show no detectable levels of the unregulated contaminants. It is our belief that such requirements
set an inappropriate precedent hi terms of publicizing analyses which demonstrate no
contamination. We fully and completely support a public notification requirement when an
unregulated contaminant is detected, but believe it is imprudent to institute such requirements
when there is no contamination. The net effect is a resource burden on utilities which can ill
afford the unnecessary time or cost of the initial public notice, as well as any requisite follow up
to a confused public which believes the public notification indicates some problem. In addition,
the regulation will serve to de-sensitize consumers to those public notices which do relay a
potential health concern.
In Region V we have negotiated a compromise with some States, which allows the State
to provide the required public notice (in the form of a Statewide press release) after the first
round of sampling has been completed. In some cases this public notice will state that
unregulated contaminant monitoring data, like all drinking water analyses, are available for
public inspection at the State primacy agency offices. We believe this offers a fair solution to the
State concerns regarding public notice resource burdens, while meeting the intent of the
regulation. For the future, we urge that public notification requirements be confined to alerting
the public to drinking water problems, of which there are plenty.
Should you which to discuss this further, please contact Dan Wilson at FTS 886-6206 or
me at FTS 353-2151. Thanks.
*Note: This guidance may need to be updated after revisions to 40 CFR 141.35 are
complete in August 1999.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 5 IB
Date Signed: May 7,1990
MEMORANDUM
SUBJECT: Clarification of Public Notification Requirements for
Unregulated Contaminants
FROM: Robert J. Blanco, Director (signed by Robert Blanco)
State Programs Division (WH-550E)
TO: Oscar Cabra, Jr., P.E., Chief
Water Supply Branch (6W-S)
Region VI
In an April 11 memo you asked for clarification on a December 1,1989 guidance memo
from Mike Cook on public notification for unregulated contaminants. You questioned a
statement we made that "any system that detects an unregulated contaminant must be required by
regulation to provide individual notice to persons served by the system," and pointed out that
systems are required only to notify persons of the availability of the results of such sampling.
I apologize for any confusion that the earlier memo caused. Our statement was not
intended to be a quote of the regulation and we did not realize that the omission of the words
"availability of the results of the sampling" would cause a misunderstanding. The thrust of the
December 1 guidance was that it would be acceptable for systems which did not detect any
unregulated contaminants to satisfy the public notification requirements with a Statewide press
release, but not for systems which did detect one or more of the unregulated contaminants.
Systems with detects would be required to provide notice strictly in accordance with §141.35(d),
which requires that systems "notify persons served by the system of the availability of the results
of sampling conducted under §141.40 by including a notice in the first set of water bills issued by
the system after the receipt of the results or written notice within three months."
I hope this clarifies our earlier guidance. Please give me call if you have any further
concerns.
cc: Regional Drinking Water Branch Chiefs
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG52
Date Signed: December 14,1989
Charles S. Mahan, M.D.
Deputy Secretary for Health
and State Health Officer
Department of Health and Rehabilitative
Services
1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
Dear Dr. Mahan:
This is in response to your August 16,1989, letter requesting clarification on EPA's
official position on the use of bottled water by a non-community system to avoid being
considered a public water system subject to the Safe Drinking Water Act (SDWA). I understand
that this has particular importance to the Florida program as systems subject to the SDWA are
under the jurisdiction of the Florida Department of Environmental Regulation and the "other"
systems are under the control of the Florida Department of Health and Rehabilitative Services.
A public water system is defined by Section 1401(4) of the SDWA as "a system for the
provision to the public of piped water for human consumption." "Human consumption" has been
interpreted by the U.S. District Court for the Eastern District of California in the case of U.S. vt
Midway Heights County Water District as including such normal uses as bathing, showering,
cooking, dishwashing, and oral hygiene. If a system provides water for these normal uses, then,
it is providing water for human consumption and is a public water system subject to regulation
under the SDWA.
The fact that a non-community water system provides bottled water for drinking would
not, by itself, affect this determination since human consumption includes more than simply
drinking the water. Further, it is important to keep in mind that according to 40 CFR 141.101, a
public water system may not use bottled water or point of use devices may only be used on a
temporary basis, usually as a condition of a variance or an exemption, to avoid an unreasonable
risk to health. Point of entry devices may be used to achieve compliance with an MCL only if
the conditions specified in 40 CFR 141.100 are satisfied.
In conclusion, in general, a non-community water system may not escape regulation by
providing bottled water for drinking if this system provides water for other normal, everyday
uses. In such situations, the system is providing water for human consumption and is subject to
the SDWA and the National Primary Drinking Water Regulations (NPDWRs).
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WSG52
I would be pleased to discuss this further. If you have any further questions on this
matter, please contact me or have your staff contact Betsy Devlin at (202) 382-2303.
cc: Mike Leonard, Region IV
Sincerely,
Michael B. Cook, Director
(signed by Peter L. Cook)
Office of Drinking Water
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG53
Date Signed: December 27,1989
Revised: December 1998
Revised by: Wendy Warren
MEMORANDUM
SUBJECT: Analytical Methods for Compliance and Limited
Alternate Test Procedures Approvals
FROM: Michael B. Cook, Director (signed by A. Kuzurade, Acting)
Office of Drinking Water, WH-550D
TO: . Environmental Services Division Directors
Regions I-X
For many years, limited alternate test procedures (ATPs) for drinking water compliance
analyses have been approved by the Office of Drinking Water (ODW) after favorable review by
the Environmental Monitoring Systems Laboratory (EMSL), under 40 CFR 141.27. The
petitions were usually initiated by a single laboratory and were forwarded by the State to EMSL.
The approval extended only to the specific laboratory approved by the petitioning State, thus, the
"limited" status.
There are several problems with this procedure. 40 CFR 141.27 Alternate Analytical
Techniques reads:
"With the written permission of the State, concurred in by the
Administrator, an alternate analytical technique may be
employed..."
A careful reading of 40 CFR 141.27(a) indicates that only the Administrator has the
authority to approve an alternate analytical technique after a request from the State. According to
the Office of General Counsel (OGC), there is no officially delegated authority to the ODW
Director to grant these approvals. Apparently, a delegation was never sought when Sec. 141.27
was promulgated in 1980. This raised a question of the validity of past approvals, and leaves the
ODW Director without authority to issue new approvals. This authority was not officially
delegated to any Regional official.
Furthermore, OGC has advised that, under the SDWA, compliance analyses must be
performed utilizing methods listed in the regulations and that any changes to the regulations must
be processed through the normal rulemaking procedure. In OGC's opinion, Section 1450 of the
SDWA prohibits the Administrator from delegating this authority to anyone.
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WSG53
Section 1450(a) of SDWA reads:
"(1) The Administrator is authorized to prescribe such regulations
as are necessary or appropriate to carry out his functions..."
"(2) The Administrator may delegate any of his functions under
this title (other than prescribing regulations) to any officer or
employee of the Agency..."
There are also philosophical problems with continuing this process. The advisability of
allowing a single lab to deviate from the national uniform regulations is questionable. This may
have been a useful mechanism to allow for the use of newer techniques and methods adapting for
unusual matrixes between 1980 and 1987. However, since 1987, we have been actively revising
all the regulations, including examining all appropriate methodologies.
For the above reasons, ODW will no longer consider and approve limited ATPs, and will
propose to repeal 40 CFR 141.27. In place of the limited ATP procedure, ODW is establishing a
two-tiered system for rapidly adopting new and revised analytical technologies for use by all
laboratories.
The first tier is for new methods, significantly modified methods or new applications of
currently approved methods. These will be evaluated by EMSL and become candidates for
accelerated regulation development. This is important because laboratory technology is
changing rapidly and we should be as close to the cutting edge as the data will allow. Through
formal proposal, public comment and promulgation in the Federal Register, the list of methods
approved for use under the regulations will be amended accordingly, thus making appropriate
changes available to all laboratories. ODW expects to be able to process changes at least as
frequently as twice per year.
The second tier covers minor improvements to existing methods which are optional and
do not substantially alter the method. These will also be evaluated by EMSL and become
candidates for inclusion in periodic Federal Register notices. Rather than formally amending the
regulations, this notice will interpret the existing regulatory methods to include the minor
optional changes. Analysts may use these minor changes or continue to use the methods as
originally promulgated. The relatively minor adjustments that will be made through this process
(i.e., matrix modifications, alternates to extraction specifications, preservation changes, etc.) have
been the subject of many ATP applications received in the past. Hence, the need for ATPs will
be greatly reduced.
This new two-tiered process provides an avenue for evaluating all methodology changes
which were handled under the old alternate test procedures program. The new streamlined
system will be more desirable because it will:
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WSG53
rapidly update NPDWRs to include the latest analytical technologies;
make changes available to all laboratories;
allow everyone to benefit from the changes;
provide for a more uniform system for compliance determinations; and
allow for ease of enforcement.
Please share this information with the State program and laboratory directors. If you have
any questions or need further information, please contact Herb Brass on (513) 569-7936.
cc: Water Division Directors, Regions I-X
Tom Clark, EMSL-CI
Lee Schroer, OGC
Bob Blanco, SPD
Herb Brass, TSD
*Note: Guidance will need to be updated after PBMS revisions are finalized.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG 54
Date Signed: February 6,1990
MEMORANDUM
SUBJECT: Multi-Media Settlements of Enforcement Claims
FROM: James M. Strode
Assistant Administrator
TO: Regional Administrators, Regions I-X
Regional Counsel, Regions I-X
Associate Enforcement Counsel
Program Compliance Office Directors
A. PURPOSE
The purpose of this memorandum is to provide guidance which explains 1) EPA policy
strongly disfavoring judicial and administrative settlements of enforcement cases which include
releases of potential enforcement claims under statutes which are not named in the complaint and
do not serve as the basis for the Agency bringing the enforcement action, and 2) how approval
for any multi-media settlements of enforcement claims should be obtained in civil judicial
enforcement cases hi the Region and at Headquarters.
B. DISCUSSION
As a general rule, a settlement of a hazardous waste enforcement action, for example,
may include a covenant not to sue providing the settling party with protection from subsequent
civil enforcement action under some or all provisions of CERCLA and/or RCRA.1 Similarly, a
Clean Water Act enforcement settlement may expressly settle EPA claims under some or all
provisions of the Clean Water Act. A settlement which extends to potential EPA enforcement
claims under any statute(s) outside of the program medium under which the case was brought,
e.g.. a CWA release in a CERCLA case, or a release in a CERCLA case under all statutes
administered by EPA, should not be given except under exceptional circumstances, because it is
standard EPA policy that releases, when granted, should be no broader than the causes of action
asserted in the complaint.2
'The United States generally gives covenants not to sue, not releases, in the CERCLA
context. This guidance, however, uses the terms "covenant not to sue" and "release"
interchangeably. Use of the word "release" is not intended to signify any differing effect of the
settlement but is merely used for ease of exposition.
2If multi-media causes of action have been asserted in the United States' complaint, then
settlement of and releases under all statutes involved in the action would not be unusual,
provided that appropriate relief is obtained under each statute. Such settlements would, however,
1
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WSG 54
Although defendants often seek releases broader than the specific medium at issue in the
case, multi-media releases for single-medium enforcement cases are strongly discouraged and
will be granted only in exceptional cases. A proposal to enter into such a settlement will undergo
close scrutiny at both the Regional and Headquarters level. When deciding whether to entertain
a request for a multi-media release, the Region should consider the following factors:
1) The extent to which EPA is in a position to know whether it has a cause of action
warranting further relief against the settling party under each of the statutes included in the
release. If, after investigation, it is determined that no cause of action exists, then it is somewhat
more likely that the release might be considered;
2) Whether the settlement provides adequate consideration for the broader release. If the
relief to be obtained under the settlement includes appropriate injunctive relief and/or penalties
for any actual or potential violation/cause of action under the other media statutes, then it is
somewhat more likely that the release might be considered; and
3) Whether the settling party is in bankruptcy. If the relief obtained through the
settlement is all the Agency can obtain from the settling party, and the settling party will be
ceasing operations, then it is somewhat more likely that the multi-media release might be
considered if the settlement is otherwise favorable to the Government. This rationale is far more
persuasive in the Chapter 7 or Chapter 11 liquidation context than in the Chapter 11
reorganization context.
In addition, the only possible statutory releases or covenants not to sue that EPA will
grant are for statutes administered by EPA. Multi-media settlements should not grant releases
phrased hi broad terms such as "all statutes administered by EPA." Rather, all such releases
should specifically name the EPA statutes included in the release. Further, releases should not
include broad statements reaching beyond EPA-administered statutes such as "all claims or
causes of action of the United States." A settlement should also not release any common law
claims EPA may have, because it is not clear what, if any, Federal common law exists in the
environmental area, and thus a release of this kind is of undefined scope. Similarly, State law
claims should not be released by the Federal government, since it is unclear what, if any, Federal
causes of action derive from State law. Moreover, as a matter of practice and policy, we should
not purport to bind States when they are not directly involved in our enforcement cases.3 As
always, releases may be granted only for civil liability, not for criminal liability.4
require the concurrence of all Regional and Headquarters media offices involved, as described in
Part C below.
3Ordinarily, State claims are independent of Federal enforcement authorities and are not
compromised by settlement under the Federal authorities.
"Releases should also be drafted in accordance with the policy and practice of each
medium involved. In most enforcement actions, this means that the release is based upon
information known to EPA at the time of the settlement and does not extend to undefined future
violations or site conditions.
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WSG54
C. PROCEDURES
All settlements involving multi-media resolution of enforcement claims require the
approval of the appropriate EPA official(s) consistent with Agency delegations of authority. For
civil judicial enforcement cases specifically, all multi-media settlements, including all CERCLA
settlements resolving claims under other EPA-administered statutes, require the approval or
concurrence of the AA-OECM.5 In any case in which the Region wishes to propose to the AA-
OECM that EPA enter into such a settlement, certain procedures must be followed.
First, cross-media consultation among all affected Regional program offices and Office of
Regional Counsel branches must be undertaken. This consultation should involve joint
investigation as to whether there are any actual or potential causes of action under any statute
under which a release is contemplated. An appropriate investigation, for example, is likely to
include a check of all relevant files, a determination of whether a field inspection is warranted,
and, if so, an inspection, and an inquiry to State program and legal counterparts to ensure that
EPA is not unknowingly settling or waiving any potential claims it may have based upon
relevant and available information. In the event that an appropriate cross-media investigation
cannot be undertaken, a release for any uninvestigated medium cannot be given.
Second, when the settlement is referred to Headquarters for approval or concurrence, the
Regional Administrator's cover memorandum to the AA-OECM should highlight the existence
of the multi-media settlement or release. It should also include a statement by the Regional
Administrator (or any other Regional official delegated responsibility to approve the settlement
on behalf of the Region) that the Region has evaluated all possible claims under all EPA-
administered statutes included within the release and, after diligent inquiry, has determined that,
to the best of its knowledge, no claims exist, or, if any claims do exist, that it is in the best
interest of the Agency to settle the claims in the manner included in the proposed settlement. If
claims do exist, the RA's memorandum should explain why the settlement is in the best interest
of the Agency.
Lastly, the OECM Division for the program area that has the lead in the settlement must
take certain steps to ensure that the other affected OECM Divisions and their program
counterparts at Headquarters do not object to the multi-media release. The lead Associate
Enforcement Counsel should-provide a copy of the settlement, the RA's cover memorandum, and
any other relevant supporting material from the Region (e.g.T in the case of a CERCLA
settlement, the Ten Point Settlement Analysis) to all other OECM Associates who are
responsible for any statutes included in the release with a request for written concurrence within
5For administrative enforcement cases which include multi-media releases, the Regions
similarly should obtain the concurrence of all EPA officials (at Headquarters or in the Region, as
the case may be) consistent with the relevant EPA delegations covering administrative
settlements under each statute included within the release. (If all authorities included within the
release are delegated to the Regions, then no Headquarters concurrence is needed.) Of course,
some administrative settlements with multi-media releases will also require approval by the
Department of Justice when a DOJ role is established by statute.
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WSG54
21 days. Each Associate should in turn consult with, and, if part of standard procedure, obtain
the concurrence of, his/her Headquarters program counterpart on the settlement. The lead
Associate and his/her staff should coordinate all OECM comments or requests for additional
information from the Region to help avoid presenting the Region with conflicting comments or
requests.
After all necessary concurrences have been received, the lead Associate Enforcement
Counsel will transmit the settlement to the AA-OECM for final action, with a copy of all
Headquarters concurrences attached to the package. Although OECM will strive to meet its
standard 35-day turnaround time for civil judicial settlement referrals, because multiple
Headquarters offices are involved, the Regions should expect that multi-media release
settlements may take greater time to be reviewed and approved by Headquarters than single-
medium settlements. To assist OECM in obtaining concurrences as expeditiously as possible,
the Region should actively consult with the lead OECM Division during negotiations so that
OECM will have advance notice of the cross-media release issue and will be able to consult with
other OECM Divisions before the settlement is referred to the AA-OECM.
D. DISCLAIMER
This memorandum and any internal office procedures adopted for its implementation is
intended solely as guidance for employees of the U.S. Environmental Protection Agency. It does
not constitute a rulemaking and may not be relied upon to create a right or a benefit, substantive
or procedural, enforceable at law or in equity, by any person. The Agency may take action at
variance with this memorandum or its internal implementing procedures.
If your staff has any questions on this matter, please ask them to contact Sandra Connors
of OECM-Waste at 382-3110.
cc: Richard B. Stewart, Assistant Attorney General, Land and Natural Resources Division,
U.S. Department of Justice
David T. Buente, Chief, Environmental Enforcement Section, Land and Natural
Resources Division, U.S. Department of Justice
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG55
Date Signed: March 1990
Surface Water Treatment Rule: Implementation Manual (Including Appendix D)
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
570/9-89-018
NTIS:
PB93-186641
ERIC:
G624
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG 56
Date Signed: April 20,1990
MEMORANDUM
SUBJECT: Change in the PWSS Program's Definition of Timely
and Appropriate Actions
FROM: Michael B. Cook, Director (signed by Michael B. Cook)
Office of Drinking Water
TO: Water Management Division Directors
Regions I - X
The purpose of this memorandum is to advise you of a modification in the PWSS
program's definition of "timely" in the "timely and appropriate" guidance. This modification will
be effective in FY 1991, as was noted in the FY 1991 "Guide to the Office of Water
Accountability System and Regional Evaluations."
I. Background/Proposed Change
The current "timely and appropriate" guidance states that for an action against a
significant noncomplier (SNC) to be considered timely it must be taken within six months of the
discovery of the SNC for microbiological/turbidity/TTHM SNCs and within twelve months of
the discovery of the SNC for chemical/radiological SNCs.
In February, my staff proposed a change to the "timeliness" portion of the "timely and
appropriate" guidance to state that an action against any SNC would be considered timely if it
occurs within six months of the discovery of that SNC.
This change does not imply that all SNCs can be resolved, that is, returned to physical
compliance, within this timeframe. I recognize that compliance with the chemical/radiological
requirements often takes longer than compliance with other requirements. I do believe, however,
that we can take the appropriate enforcement action to address these systems within six months.
This approach has several advantages. First, it simplifies our guidance and, as a result,
our reporting requirements. All SNCs will now be subject to the same timelines. Regional
reporting to headquarters will be simplified as will the ODWs annual report to the Agency on
the implementation of the timely and appropriate enforcement response criteria.
Secondly, with the change in the definition of SNC, there are no longer two categories of
SNC, but several. Setting out different timeliness criteria for several types of SNCs does not
appear to be feasible and it would unnecessarily complicate tracking and reporting, as well as
explaining our policy to those outside ODW.
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WSG56
Thirdly, changes in the Operating Guidance and in our capacity to generate the
chemical/radiological SNC lists seem to make this approach a logical one. The FY1991
Operating Guidance requires the Regions to provide quarterly reports on all SNCs. Secondly,
FRDS 2.0 has the capacity to generate the chemical/radiological SNC list each quarter. In
previous years, we were able to pull the chemical/radiological SNC list only once per year and
the Regions were required to report follow-up actions on these only once per year. With those
constraints, the difference in the "timeliness" criteria for resolving microbiological/turbidity
SNCs and chemical/radiological SNCs made sense. However, since these constraints no longer
exist, putting all SNCs on the same time schedule seems to be the logical way to proceed.
Please note that no change in the definition of an "appropriate" action is being proposed
at this time.
II. Comments on the Proposed Change
My staff proposed this change in a memorandum to the Drinking Water/Groundwater
Protection Branch Chiefs (February 23,1990). We received comments from all of the Regions. A
summary of the comments received is contained in Attachment 1.
This change was discussed at the Branch Chiefs' meeting hi Seattle in March and all the
Regions that attended agreed that ODW should implement the change in FY 1991 along with the
revised definition of SNC.
III. Implementation of the New "Timeliness" Definition
The revised definition for "timeliness," that is, "in order for an appropriate action against
a SNC to be considered timely, it must have been taken within six months of the discovery of
that SNC" will be effective in FY 1991. We will apply the criteria beginning with the list of new
SNCs which will be generated in October 1990. The time for "appropriate action" on these new
SNCs will expire in March 1991. Regions will report follow-up on SNCs in the same manner as
they are currently on the STARS quarterly reports. The only difference -will be that the quarterly
reports will contain all SNCs (not just microbiological and turbidity SNCs).
Should you have any questions on this, please contact me or have your staff contact Betsy
Devlin at (202) 564-2245.
Attachment
cc: Drinking Water/Groundwater Protection Branch Chiefs
PWSS Enforcement Coordinators
Kathy Summerlee
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Attachment 1
Page 1 of2
Region
I
Comments
Concur with change. No other
comments.
Response
None needed.
II
Concur with change. The one
drawback is that it will give less
time to address the large number
of systems which will become
SNCs due to the SNC
redefinition.
. It is true that we anticipate an
increase in the number of SNCs
due to the SNC redefinition.
However, the increase should be
seen mainly in the
microbiological and turbidity
SNCs where the time for taking
action was already six months.
Thus, the change in "timeliness"
does not give us less time to
address these SNCs.
m
IV
Concur. No other comments.
Concur. No other comments.
Concur. We must note two
ramifications of this change: (1)
States will in many cases be
forced to finalize a formal
enforcement action before an
engineering study has been
completed. This may make it
necessary for States to be willing
to revise final compliance dates
and interim milestones in their
orders. This should be
acknowledged in guidance; (2)
We will most likely have a higher
percentage of exceptions,
especially in complex cases which
involve hearings and community
responses.
None needed.
None needed.
Agree with Region V's comments;
no change needed in "timeliness"
criteria.
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Attachment 1
Page 2 of2
Region
VI
Comments
Agree with the change for
chemical/radiological monitoring
and reporting SNCs; however, for
chemical and radiological MCL
SNCs, believe the time period is
too short. A system becomes an
SNC when it receives the results
of a chemical analysis showing
concentrations above the URTH
level. Six months is too short for
a system to install treatment and
return to compliance and
changing the "timeliness" criteria
to six months will force States to
put even cooperative systems on
formal compliance schedules
when it is not necessary.
Response
We are aware of your concerns;
they are similar to those raised by
Region V; however, the
timeframe allowed is for EPA or
the States to take action - not for
the system to return to
compliance. We believe that
action can be taken in most cases
in the six months allowed.
Concur with the change.
VII
VIII
IX
Concur with the change. No other
comments.
Concur with the change. No other
comments.
Concur with the change. Make all
changes (i.e., SNC redefinition,
change in "timeliness," and the
escalation guidelines) at one time.
No response needed.
No response needed.
Agree with Region X's comment.
X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG57
Date Signed: May 22,1990
MEMORANDUM
SUBJECT: Revised Definition of Significant Noncomplier
(SNC) and the Model for Escalating Responses to
Violations for the PWSS Program
FROM: Michael B. Cook, Director (signed by Michael B. Cook)
Office of Drinking Water
TO: Water Management Division Directors
Regions I - X
This memorandum transmits the revised definition of significant noncomplier (SNC) and
the Model for Escalating Responses to Violations for the Public Water System Supervision
(PWSS) program. Both of these documents have been developed as part of our FY 1990
Enforcement Initiatives to strengthen the enforcement component of the PWSS program.
The new SNC definition is part of a three-tiered prioritization scheme for all violators of
the National Primary Drinking Water Regulations (NPDWRs). Tier 1 is composed of the SNCs -
- those violators which present the greatest risk to health and which, therefore, are generally
primary enforcement targets. Tier 2 represents an intermediate set of violators. Some of these
have not been hi violation long enough to become SNCs; others are in violation of an MCL, but
the level of the contaminant is sufficiently low that it does not pose an immediate threat to public
health. Tier 3 contains the rest of the violators of the NPDWRs. Attachment 1 to this
memorandum is a summary of the definition of each tier of violations.
The definition and prioritization scheme will be phased hi according to the following
schedule:
FY 1991: Community and nontransient noncommunity water systems.
FY 1992: Transient noncommunity systems serving 500 or more persons.
F Y 1993: Transient noncommunity systems serving less than 500 persons.
We will use the new SNC definition to set Regional STARS targets for SNC reductions
for FY 1991.
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The Model for Escalating Responses to Violations is designed to clarify the Office of
Drinking Water's expectations for State and Federal responses to violations. The escalation
model uses the same tiers of violations and recognizes that in general the Tier 1 violators (SNCs)
are the highest priority for enforcement actions. The model suggests that formal actions are
appropriate in certain Tier 2 cases, especially in the case of continued microbiological non-
reporting of MCL violations. However, we recognize that resources may limit the number of
Tier 2 violations which can be addressed through formal actions.
There are several criteria which may be used along with the tiers to prioritize systems for
action. One of these is the population served by the system. The workgroup which developed
the SNC definition discussed the inclusion of population served as a part of the SNC definition;
for example, including hi the definition a criterion which would make large systems become
SNCs with a fewer number of violations than smaller systems. The workgroup decided against
this approach on the grounds that individuals served by small systems deserve the same level of
health protection as those served by larger systems. I support this decision; however, I do
believe that population served by a system should be used hi prioritizing potential candidates for
enforcement actions. Therefore, I ask that, in reviewing both SNCs and Tier 2 violators for
potential enforcement actions, the Regions consider the population served by the system and, in
general, proceed against systems with larger populations before those with smaller populations.
Another possible criterion for establishing priorities for Tier 2 chemical/radiological
violators is the length of time the system has been hi violation. This is especially true since the
Tier 2 violator may eventually become a SNC. Although the workgroup could not agree on this
as part of the SNC definition, the Unreasonable Risk to Health (URTH) Guidance which will be
issued later this year will add a time dimension to the definition of Unreasonable Risk to Health
for non-acute contaminants. A system that exceeds the MCL, but does not present an URTH
initially, will eventually be considered to have an URTH and therefore to be SNC after a certain
number of years.
Several Regions have stated that they believe the escalation model is inconsistent with the
timely and appropriate criteria in that it suggests formal enforcement action at an earlier stage
than the timely and appropriate criteria. I believe that there is no inconsistency. First, the timely
and appropriate criteria are a management tool to help evaluate performance and clarify
expectations on the types of actions which should be taken and the timeframes for those actions;
they were not designed to preclude a formal action at an earlier stage. Secondly, ODW has
always maintained that SNCs and exceptions are not the only targets for State or Federal
enforcement actions. Finally, the use of the model may help us to improve performance against
the timely and appropriate criteria hi that if a formal action is started prior to the system
becoming a SNC, the action may be completed before the timely period expires.
Attachment 2 contains the complete explanation of the escalation model. Attachment 3 is
a chart which summarizes both the tiers of violations and the suggested enforcement responses
for that tier.
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I request that each of you review your State-EPA Enforcement Agreements and State
Compliance Strategies and develop plans for strengthening these to include the new SNC
definition and the escalation model. The summary and recommendations from last-year's
enforcement reviews should also be referenced.
I would like to take this opportunity to thank all who were involved in the SNC
redefinition and the development of the escalation model for their helpful comments and
insights. Special thanks goes to Oscar Cabra, Chief of the Water Supply Branch in Region VI
for his service as the SNC Redefinition Workgroup Chairman and to the members of his
workgroup: Jerry Healey, Jon Capacasa, Joe Harrison, Pat Crotty, Steve Pardieck, Bill Davis,
and Chet Pauls. I count on the cooperation and continued support of you and your staff as we
implement the new SNC definition and the escalation model.
Attachments
cc: Drinking Water/Groundwater Protection Branch Chiefs
Drinking Water Section Chiefs
PWSS Enforcement Coordinators
Kathy Summerlee, OECM
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Attachment 1
Page 1 of4
SIGNIFICANT NONCOMPLIER (SNQ DEFINITION - SUMMARY
(TIER 1 VIOLATIONS)
An SNC is a public water system which meets any of the following criteria:
1. Microbiological/Turbidity:
(a) Systems on monthly monitoring:
4 or more violations of the microbiological or turbidity MCL during any
12 consecutive months.
6 or more combined "major"* violations of the microbiological or
turbidity monitoring/reporting requirements and/or violations of the
microbiological or turbidity MCL during any 12 consecutive months.
10 ore more combined microbiological or turbidity monitoring/reporting
("major" or "minor"**) and/or MCL violations during any 12 consecutive
months.
i
(b) Systems on quarterly monitoring:
two or more violations of the microbiological MCL during any four
consecutive quarters.
three or more combined "major" violations of the microbiological
monitoring/reporting requirements and/or MCLs during any four
consecutive quarters.
(c) Systems on annual monitoring:
two or more combined "major" violations of the microbiological
monitoring/reporting requirements and/or MCLs during any two
consecutive one-year periods.
2. Chemical/Radiological:
(a) Exceeds the unreasonable risk to health level identified for that
contaminant. (Unreasonable risk to health guidance/criteria will be
distributed under separate cover.)
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Attachment 1, (cont'd.)
SNC Definition
(Tier 1 of Violators)
Page 2 of4
Note: The interim URTH guidance for nitrate specified two URTH levels ~ 10
mg/1 for infants under 6 months of age and 20 mg/1 for the remainder of
the population. For the purposes of determining SNCs, we will use 10
mg/1 as discussed at the Branch Chiefs' meeting. If the nitrate
concentration in a PWS is between 10 and 20 mg/1 and the conditions in
the February 26,1990 memorandum on "Interim URTH Values for
Nitrate/Nitrite and Fluoride" are met, the PWS may be eligible for an
exemption.
(b) Fails to monitor for or report the results of any of the currently
regulated contaminants for two consecutive compliance periods.
3. Surface Water Treatment Rule:
- ** To be clarified this spring. **
4. Public Notification:
Fails to provide notice to the consumers of the violations which result in
the system becoming an SNC.
* A "major" monitoring/reporting violation is one where no samples were taken or
results reported during a compliance period.
** A "minor" monitoring/reporting violation is one where an insufficient number of
samples were taken or results reported during a compliance period.
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Attachment 1, (cont'd.)
SNC Definition
Page 3 of4
TIER 2 VIOLATORS - SUMMARY
A Tier 2 violator is a public water system which meets any of the following criteria:
1. Microbiological/Turbidity
(a) Systems on monthly monitoring:
two or more violations of the microbiological or turbidity MCL during any
12 consecutive months.
- • three or more combined "major" violations of the microbiological or
turbidity monitoring/reporting requirements and/or violations of the
microbiological or turbidity MCLs during any 12 consecutive months.
five or more combined violations ("major" or "minor") of the
microbiological or turbidity monitoring/reporting requirements and/or
violations of the MCLs during any 12 consecutive months.
(b) Systems on quarterly monitoring:
one or more violation of the microbiological MCL.
two or more combined "major" violations of the monitoring/reporting
requirements and/or violations of the MCL in four consecutive quarters.
2. Chemical/Radiological:
All violations of the chemical/radiological MCLs where the concentration
of the contaminant does not exceed the unreasonable risk to health level.
Any monitoring/reporting violation.
3. Public Notice:
All public notification violations not covered by the SNC definition.
4. SWTR:
- ** to be clarified in the spring. **
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Attachment 1, (cont'd.)
SNC Definition
Page 4 of4
TIER 3 VIOLATIONS ~ SUMMARY
A Tier 3 violator is a public water system which meets any of the following criteria:
1. Microbiological/Turbidity
(a) Monthly monitoring:
one violation of the microbiological or turbidity MCL in 12 months.
one or two combined "major" violations of the microbiological or turbidity
monitoring/reporting requirements and/or violations of the microbiological
or turbidity MCLs in 12 consecutive months.
one to four combined violations ("major" or "minor") of the
microbiological or turbidity monitoring/reporting requirements and/or
violations of the microbiological or turbidity MCLs in 12 consecutive
months.
(b) Quarterly monitoring:
Not applicable. All violations of microbiological MCLs or monitoring
and reporting requirements begin as Tier 2 violations.
2. Chemical/Radiological
Not applicable. All violations of chemical/radiological MCLs and/or
monitoring and reporting requirements begin as Tier 2 violations.
3. Public Notice
Not applicable. All violations begin as Tier 2.
4. SWTR
- ** To be expanded/clarified. **
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A MODEL FOR ESCALATING RESPONSES TO VIOLATIONS
The Office of Drinking Water (ODW) has developed a model for escalating responses to
violations. This model clarifies the Office's expectations for State and federal responses to
violations of the Safe Drinking Water Act (SDWA) and the National Primary Drinking Water
Regulations (NPDWRs). It is expected that this model will be used by States to develop or
strengthen their compliance strategies. EPA Regional Offices are expected to rely on the model
hi developing their State - EPA enforcement agreements and overseeing State enforcement
programs, especially in the review of State compliance strategies and of State responses to
violations. The Regions are also expected to rely on the model to help determine when federal
enforcement actions should generally occur.
ODW recognizes that the States often have regulations or operating requirements for
public water systems which are different from the federal requirements and that the States
enforce these. ODW also recognizes that States have many different types of enforcement
authorities. These guidelines are not intended to alter the State enforcement of its own
regulations nor to preclude use of State authorities not specifically mentioned hi this model.
We hope that this model will assist in the development of strong and effective
enforcement programs nationwide.
The model for escalating responses to violations incorporates the following concepts:
1. Violations of the national primary drinking water regulations (NPDWRs) should
receive a response from the primacy agency.
2. Responses to violations should escalate in formality as the violation continues or
recurs.
3. Some violations are very serious and pose an immediate risk to public health. In
these circumstances, it is appropriate to proceed directly to a formal action, such
as an emergency administrative order, an injunction or a temporary restraining
order (TRO), or an emergency civil referral.
4. States have primary enforcement responsibility. Therefore, the first response to a
violation should generally be by the State and federal action is generally reserved
for continuing violations where the State has not acted appropriately or where the
State requests assistance. However, hi cases where the Region is directly
implementing the program (either because the State does not have primacy, the
State has not adopted one of EPA's new regulations, or on Indian lands) "State"
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should be read to include the Regional office. In addition, these guidelines should
not be interpreted to preclude federal action at any point in the process if the
situation warrants it.
5. Generally, the majority of enforcement actions are administrative in nature.
However, judicial cases are important enforcement tools and should be used.
6. This model is intended to be consistent with ODW's new definition of significant
noncompliance (SNC), including the categorization of all violations into three
tiers. The model suggests responses based on type and level (tier) of the violation.
In addition, the model is intended to be consistent with and complement existing
timely and appropriate enforcement response guidance and the PWSS Compliance
and Implementation Strategy of April 1987.
7. In some circumstances, continuing an enforcement action may be so resource
intensive that the costs involved clearly outweigh the benefits to be derived. In
such a case, the Region (or State) may decide not to continue with a formal
enforcement action and may look for other means for returning the system to
compliance. Such a decision must be clearly documented in the case files and is
subject to careful review.
MODEL RESPONSES TO VIOLATIONS
This Model for Escalating Responses to Violations suggests responses based on the
category of the violation; that is, the tier into which it has been placed. Generally, responses to
Tier 3 violations are informal; while responses to Tier 1 violations (SNCs) must satisfy the
timely and appropriate enforcement response guidelines. The responses to Tier 2 violations are
generally more formal than Tier 3. A chart summarizing the definitions of each tier of violations
and the suggested enforcement responses to these violations is attached.
RESPONSES TO TIER 3 VIOLATIONS
Tier 3 violations are first-time microbiological and turbidity monitoring/reporting (M/R)
violations, the first-time Surface Water Treatment Rule violations, and first-time
microbiological/turbidity MCL violations. Responses here are generally informal; e.g., reminder
letters and telephone calls and escalate to stronger letters.
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(a) Monitoring/Reporting and Combinations of Monitoring/Reporting
and MCL Violations
This applies to microbiological and turbidity violations only. Chemical and radiological
M/R violations begin as Tier 2 violations.
First violation: Reminder letter or telephone call (if properly documented in
files). This should inform the system of its violation, explain the
monitoring/reporting requirements, and offer assistance if needed.
Letter/telephone call should also remind system that public notification of its
failure to comply with the monitoring requirements is required. This applies to
both major and minor M/R violations in systems on both monthly and quarterly
monitoring.
Second violation: Stronger letter to the system again explaining the
monitoring/reporting requirements, noting that the system has not returned to
compliance even after the first notice that they were hi violation. Primacy agency
may inquire at this time if there is a particular problem with the system which is
preventing it from complying with the monitoring/reporting requirements and if
technical assistance is needed. This applies to both major and minor M/R
violations for systems on monthly monitoring and to minor M/R violations only
for systems on quarterly monitoring. If the system's first violation was an M/R
violation and the second violation is an MCL violation, use the responses in (b)
below.
Third violation: Minor M/R violations for systems on monthly monitoring only.
All others have moved to Tier 2. At this point, the system has ignored two
communications from the primacy agency and so stronger action is needed.
Suggest agency contact the owner/operator directly and discuss the situation,
warning the system that if it does not comply, more formal action will be
forthcoming. Agency should consider formal action if a fourth violation occurs or
if any results show an MCL violation. Region may wish to consider federal NOV
if State has not acted by this point.
(b) MCL Violations
This applies to systems on monthly monitoring with microbiological and turbidity MCL
violations only. Chemical/radiological violations begin at Tier 2. Only one MCL violation hi a
twelve month period is allowed before moving to Tier 2. Suggested response to the MCL
violation is a letter to the system noting that it is in violation; explaining the health impacts of the
violation; reminding it of any required check-samples; informing it of the requirement to perform
10
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public notification. Such a letter should offer technical assistance in correcting the problem and
provide a contact in the State or local office. The letter should also state that another violation of
the microbiological or turbidity MCL may subject the system to enforcement action. If system
does not respond to this communication within five days, additional action is recommended. In
these cases, the State should contact the system directly and/or consider a more formal action.
(c) Surface Water Treatment Rule (SWTR) Violations
This will be clarified as the categorization of SWTR violations is clarified. Generally,
however, the response to the first violation or month of violation will be informal, for example, a
letter or telephone call to the system noting that it is in violation and offering technical assistance
if needed.
RESPONSES TO TIER 2 VIOLATIONS
Tier 2 violations consist of those violations of the microbiological or turbidity MCL or
M/R requirements (or a combination of MCL and M/R violations) or of the SWTR requirements
which have continued for a certain length of time. For these types of violations, the response by
the primacy agency should be stronger and more formal than the response to the Tier 3
violations. Federal action (NOV or PAO) should be initiated if the State has not acted in response
to the violation, if the system has not responded to the State action, or if the State requests it.
In addition, Tier 2 includes chemical and radiological MCL violations below the SNC
level, any violation of the chemical/radiological M/R requirements which does not meet the
criteria for a SNC, and violation of the public notification requirements by systems not yet SNCs.
Since this is the first time these violations have appeared, the responses begin by being less
formal (e.g., telephone calls, reminder letters) and escalate if the system does not respond.
(a) Microbiological/Turbidiry/M/R violations and Combinations of M/R
and MCL violations.
This is the third major M/R violation for systems on monthly monitoring and the second
major M/R violation for systems on quarterly monitoring. For these, primacy agency should
begin with a site visit or other means of contacting the owner/operator directly if this has not
already been done. State officials should confirm that public notification has been performed.
The primacy agency may wish to take samples itself to determine the microbiological quality of
the water. The visit/conversation should be followed up with a strongly worded warning letter
stating that the system must comply or that an enforcement action is forthcoming. If another
violation (major or minor) occurs or if any monitoring results demonstrate an MCL violation,
formal enforcement actions (State or Federal) should begin.
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This is the sixth minor M/R violation for systems on monthly monitoring. Formal notice
of violation (State or Federal) or other formal action should begin (if it hasn't already). This is
especially true if there is any indication of an MCL violation.
(b) Microbiological/Turbidity MCL Violations
This is again a situation of continuing MCL violations even after the system has been
contacted by the State. In these cases, State should schedule a site visit to determine the nature
of the problem (if State officials do not already know from earlier visits). Any visit should be
followed-up with a letter or a report specifying remedial actions to be taken and a schedule for
those. The report should also explain the health effects of the violations.. The State should insure
that public notification has been performed and that the system is taking adequate measures to
protect the public health. If the system is not and there is an "acute" risk, the State should
consider use of any emergency or other authorities to compel the system to take necessary
measures to protect the public. Federal enforcement actions should begin if the State has not
acted to deal with the situation.
(c) Chemical/Radiological M/R Violations
This is the first time a chemical/radiological M/R violation appears. For the first
violation, then, a letter (or phone call if properly documented in the files) reminding the system
of the M/R requirements, and offering assistance if needed is appropriate. System should be
given a date for the submission of M/R results and warned that another M/R violation will put
them into the category of significant noncomplier and a formal enforcement action will be
forthcoming. If a system does not respond to the letter and/or does not submit the results as
required, formal enforcement action should be initiated.
(d) Chemical/Radiological MCL Violations below the SNC level
This is the first time a chemical/radiological MCL violation appears. Suggested response
is a letter to the system noting that it is in violation, reminding it of any required check samples,
informing it of the requirement to perform public notification of the violations. The letter should
also discuss the health effects of the MCL violation* specify any interim measures necessary to
protect public health, offer technical assistance in correcting the problem and provide a contact
person in the State office.
If there is no response to this first letter within 30 days (less if there is an acute risk to the
health of the general public or a sensitive group), the State should schedule a site visit to
determine the exact nature of the problem (if not already known). State should send a strongly
worded letter to the system notifying it of its continuing violation and reminding it of the
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requirement to perform public notification. This letter should restate the health effects
information and the necessary interim measures. State letter should specify the necessary
remedial actions and provide a timetable.
If there is still no response from the system within 30 days (less if there is an acute health
risk as noted above) or the system fails to perform remedial actions on the suggested timetable,
the State should issue a warning letter saying that formal enforcement is forthcoming or proceed
directly to formal enforcement actions. Federal action should be initiated here if the State has not
acted or if the system is unresponsive to the State's actions.
(e) Public Notification
Violation of the public notification requirements should be dealt with at the same time
other violations are being addressed; that is, when the primacy agency sends letters/notifications
to the system informing it of violations, any violation of the public notification requirements
should be included with these.
(f) SWTR violations
This will be clarified as the definitions of the tiers of SWTR violations are clarified.
Generally, however, the Tier 2 violations represent continuing violations of the rule, where the
system has already received notification of its violation from the primacy agency. At this point,
the primacy agency may wish to schedule a site visit or discuss the situation with the
owner/operator of the water system. This should be followed up with a strongly worded letter
with corrective actions and a timetable.
If the system continues its violations and does not take remedial/corrective actions,
primacy agency should proceed to formal enforcement. Federal enforcement should be initiated
here if the State has not acted or if the system has been unresponsive to the State's actions.
RESPONSES TO TIER 1 VIOLATIONS (SNCs)
Tier 1 violations are the significant noncompliers (SNCs). By the time the public water
system becomes a SNC, the opportunity to deal with the system's violations through informal
measures has passed. The system should be dealt with in accord with the PWSS "timely and
appropriate" guidance. "Appropriate" responses are the following:
• Bilateral compliance agreement (signed by both parties; containing interim
milestones);
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• State or Federal administrative order;
• State or Federal civil referral; and
• State or Federal criminal case
In order for these actions to be considered "timely" they must be taken within six months
of the discovery of the SNC.
Note - Nitrate only: As noted in the SNC definition, two unreasonable risk to health
values have been specified for nitrate, 10 mg/1 for infants up to 6 months of age
and 20 mg/1 for the remainder of the population. As was discussed at the Seattle
Branch Chiefs' meeting, 10 mg/1 will be used to determine SNCs. If, however, the
PWS has nitrate levels between 10 and 20 mg/1, and the system meets the
conditions in the February 26 memorandum on "Interim URTH Values for
Nitrate/Nitrite and Fluoride", the system may be eligible for an exemption.
RESPONSES TO "IMMINENT AND SUBSTANTIAL ENDANGERMENT"
SITUATIONS
If a situation occurs such that there is an "imminent and substantial endangerment to
human health", informal responses should be skipped or greatly accelerated. The State (or EPA)
should use whatever powers it has to order measures to protect the public health.
CRITERIA FOR A CIVIL REFERRAL
One of the principles of this model is that civil judicial referrals are important
enforcement tools. The office recognizes, however, that the resources involved in pursuing a
judicial case at either the State or Federal level are often very great. Yet there are some
circumstances where an administrative action will not yield a sufficient remedy. In these
situations, a civil referral should be pursued. Examples of some such situations are listed below:
• Continued noncompliance in the face of outstanding administrative orders;
• A determination that a higher penalty than can be obtained in an administrative
action is appropriate;
• A desire to have, as part of the settlement, an enforceable consent decree, with a
schedule and stipulated penalties for noncompliance, hi order to insure that the
system remains on a compliance schedule.
. •;
• The case has Regional or national significance due to its unique facts.
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MONITORING SYSTEMS' PROGRESS TOWARDS COMPLIANCE
Once an action has been taken and a system is on a schedule to come into compliance, the
State or EPA should monitor the system's progress. Violations of schedules should be
documented as well as the State or Federal response to the violations. If a milestone or a
requirement of a schedule, order, or consent decree is missed, the appropriate authorities should
investigate the situation to determine why the requirement was missed. The results of this
investigation should be documented in the file and used as a basis for determining the response
to the violation. Certain violations will be so blatant (e.g., refusing to install equipment after it
has been delivered) as to demand an additional formal response, such as a complaint for penalty,
an action for contempt, and/or seeking stipulated penalties. Others (e.g., a required report being
submitted a few days late) may not require an additional formal action, but may be addressed
through a reminder telephone call or letter. Such a determination is best left to the agency
responsible for enforcing the decree or schedule; however, the decision and justification should,
in all circumstances, be adequately documented in the case file.
Final note: The tracking of a system's progress is primarily the responsibility of the
agency which issued the schedule or order. The Regions should oversee the States' actions hi
this regard as part of their routine oversight of State enforcement programs. The Regions need to
track systems' compliance with any Federal consent decrees in accord with the "Judicial Consent
Decree Tracking and Follow-up Directive" (January 1990) issued by the Office of Enforcement
and Compliance Monitoring. Tracking of compliance with Federal administrative orders should
be performed in accord with guidance the Office of Drinking Water will issue in the summer of
1990.
15
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WSG57
SUMMARY - A MODEL FOR ESCALATING RESPONSES TO VIOLATIONS
Attachment 3
Page 1 of6
Tier 3
Description of
Violations:
Response:
Micro/Turb
MR
Monthly Monitoring:
- 1 or 2 "major" M/R or
MCL violations in 12
consecutive months
- 1 to 4 "major" or
"minor" M/R or MCL
violations in 12
consecutive months
Quarterly reporting:
Not applicable; 1st
violation is Tier 2
Monthly Monitoring:
Major: 1st violation:
Reminder letter or
telephone call
2nd violation: Stronger
letter (if 2nd violation is
MCL, use responses for
MCL violations)
(confd)
Micro/Turb
MCL
Monthly Monitoring:
- 1 MCL violation in
12 months
Quarterly Monitoring:
Not applicable. All
MCL violations begin
as Tier 2
Monthly Monitoring:
1st violation: Letter to
(or direct contact with)
system. If system does
not response within 5
days (or less), contact
system directly and/or
proceed to more formal
action
(confd)
Chem/Rad M/R
Not applicable; all
chem/rad M/R
violations begin as Tier
2
Not applicable; all
chem/rad M/R
violations begin as Tier
2 violations
(confd)
Chem/Rad MCL
Not applicable; all
chem/rad MCL
violations begin as
Tier 2
Not applicable; all
chem/rad MCL
violations begin as
Tier 2 violations
•
PN
Not applicable
Although technically
there is no Tier 3 PN
violation, PN should
be confirmed in
discussions/letters on
violations
(confd)
SWTR
To be clarified hi the
spring
To be clarified,
although generally the
response to the first
violation will be
informal, e.g., a letter
or telephone call
t
16
-------
WSG57
Attachment 3
Page 2 of6
Tier3(cont'd.)
Description of
Violations:
Response:
•
Mkro/Turb
M/R
Micro/Turb
MCL
Chem/Rad M/R
Cbem/Rad MCL
PN
SWTR
(SEE PREVIOUS PAGE)
Minor: 1st violation:
Reminder letter or
telephone call
2nd violation: Stronger
letter
3rd violation: Contact
owner/operator, warning
letter
4th violation: Formal
action. Consider federal
NOV if State has not
acted by this time or if
MCL violation appears
Quarterly Monitoring:
Major 1st violation:
Reminder letter or
telephone call
Minor 1st violation:
Reminder letter
2nd violation: Stronger
letter
Quarterly Monitoring:
Not applicable; 1st
violation is Tier 2
V
PN violations
should be followed
up on at same time
as other violations
•
1
17
-------
WSG57
Attachment 3
Page 3 of6
Tier 2
Description of
Violations:
'
Response:
Micro/Turb
MR
Monthly Monitoring:
- 3 or more "major"
M/R or MCL violations
in 12 consecutive
months
- 5 or more "major" or
"minor" M/R or MCL
violations in 12
consecutive months
Quarterly Monitoring:
(Microbiological only)
- 2 or more "major"
M/R or MCL violations
Monthly Monitoring:
Major 3rd violation:
site visit or other direct
contact with PWS;
warning letter
(confd)
Micro/Turb
MCL
Monthly Monitoring:
- 2 or more MCL
violations in 12
consecutive months
,
Quarterly Monitoring:
- 1 or more
microbiological MCL
violation
Monthly and Quarterly
Monitoring:
2nd MCL violation for
monthly monitoring; 1st
violation for
(confd)
Chem/Rad MR
Any chemical or
radiological monitoring
and reporting violation
for one compliance
period
l
1st violation: Reminder
letter or telephone call;
provide date for
submission of M/R
results. If no response
or if system
(confd)
Chem/Rad MCL
Any violation of the
chemical or radiological
MCLs below the URTH
level
1st violation: Reminder
letter Specify remedial
actions and schedule If
no response or system •
fails to take remedial
actions, site
(confd)
PN
Currently Tier 2
violations will be all
those not covered by
the SNC definition
'
Violation of PN
requirements should
be dealt with at the
same time as other
violations
(confd)
SWTR
Definition of SWTR
Tier 2 violations will
be expanded
Although the definition
needs to be expanded
continuing violations
should
(confd)
18
-------
WSG57
Attachment 3
Page 4 of6
Tier2,(cont'd.)
Description of
Violations:
Response:
*
•
• •
Micro/Turb
MR
Micro/Tnrb
MCL
Chem/Rad M/R
Chem/Rad MCL
PN
SWTR
(SEE PREVIOUS PAGE)
Next violation (major or
minor) or if any
indication of MCL
violations: Begin
formal enforcement
Minor 6th violation:
Formal action should
begin
Quarterly Monitoring:
2nd major or 3rd minor
violation: Site visit or
other direct contact with
PWS; follow up with
warning letter
Next violation (major or
minor) or if any results
indicate MCL violation,
begin formal
enforcement
quarterly monitoring; Site
visit; follow up with
letter/order specifying
remedial actions and
schedule
If no response from
system or if system is
uncooperative, begin
formal enforcement
actions
Federal NOV if State
hasnt acted at this point
does not submit data
as required, initiate
formal action
*.
visit, followed up with
strongly worded
warning letter repeating
remedial actions and
schedule
If no response within 30
days, formal action
that is, in the letters in
the formal actions
•
probably be dealt with
by scheduling a site
visit or other direct
contact with PWS;
follow up with specific
corrective actions and
schedule
If violation continues
and corrective action is
not taken, initiate
formal action
19
-------
WSG57
Attachment 3
Page 5 of6
Tierl
(SNCs)
Micro/Turb
M/R
Micro/Turb
MCL
Cbem/Rad M/R
Chem/Rad MCL
PN
SWTR
(Description of
Violations:]
Monthly Monitoring:
- 6 or more "major"
M/R or MCL violations
in 12 consecutive
months
- 10 or more "major" or
"minor" M/R or MCL
violations in 12
consecutive months
Quarterly Monitoring:
- 3 or more "major"
violations of the
microbiological M/R
requirements or MCLs
in 4 consecutive
quarters
Annual Monitoring:
- 2 or more "major"
violations of the
microbiological M/R
requirements or MCLs
in 2 consecutive one-
year periods
Monthly Monitoring:
- 4 or more violations
of the MCLs during any
12 consecutive months
Quarterly Monitoring:
- 2 or more
microbiological MCL
violations in any 4
consecutive quarters
Fails to monitor for or
report the results of any
of the currently
regulated contaminants
for 2 consecutive
compliance periods
Exceeds the
unreasonable risk to
health level identified
for that contaminant
Fails to provide notice
to consumers of the
violations which result
in the system becoming
aSNC
Definition of SNC for
SWTR to be clarified
this spring
20
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WSG57
Attachment 3
Page 6 of6
Tierl
(SNCs)
(cont'd.)
Micro/Turb
MR
Micro/Turb
MCL
Chem/Rad M/R
Chem/Rad MCL
PN
SWTR
Response:
Enforcement Responses to SNCs should follow the timely and appropriate guidance. A final action must be taken with six months of the
discovery of the SNC to be considered timely. The following are the appropriate actions:
Bilateral compliance agreement (signed by both parties and containing interim milestones);
State or Federal administrative order;
State or Federal civil referral; and
The filing of a State or Federal criminal case.
"Imminent and Substantial" Endangerment Cases: Skip escalation model. Proceed directly to formal action as necessary to protect public health.
21
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG58
Date Signed: June 6,1990
MEMORANDUM
SUBJECT: Transmittal of the Final Handbook for State Program Revisions Under the New
Primacy Regulation
FROM: Michael B. Cook, Director
Office of Drinking Water
TO: Water Management Division Directors
Regions I - X
Attached is the final version of the handbook entitled, "Handbook For EPA Review of
State Program Revisions Under New Primacy Regulations For the PWSS Program." The
handbook supports implementation of the new primacy regulations for all future State program
revisions, starting with the surface water treatment and the total coliform rules promulgated June
29,1989.
The handbook describes the: extension process; Attorney Generals statement; procedures
for updating EPA reviews of primacy revisions; withdrawal process; use of crosswalks and
checklists; and the way the two-step review process will work. While some of this material may
be familiar to you after having worked through the VOCs/PN revision process, some procedural
changes have been made that should make the revision process more efficient. This handbook
will help alleviate some of the procedural problems that we encountered during the VOCs/PN
revision process.
The comments we received from your staff and the other regions on this handbook were
very useful in helping us produce a better, more supportive document. With a few exceptions,
most comments were incorporated in the final product.
A consistent theme among the regions was the desire for a reduction hi OD Ws
involvement in the primacy application revision process. While we must maintain a strong role, I
agree that ODWs role can be reduced. ODW will continue to conduct one detailed State review
in each region for each regulation. However, we will no longer ask the regions to send ODW all
of the documentation for the non-detailed reviews that was required for the VOCs/PN reviews.
Headquarters will maintain the right to conduct additional State reviews in the event that we feel
it is necessary.
. .For the non-detailed reviews, ODW will no longer request copies of the crosswalk,
checklist, or regulations. Instead, ODW and OE (formally OECM) will waive concurrence on all
non-detailed reviews in one memo for each region, after completion of the detailed review in that
region. OGC has stated that they will continue to concur on the ORCs concurrence (after ORC's
full review). ODW will work out a procedure with OGC to have OGC's memo sent directly to
1
-------
WSG58
the region. For the non-detailed review process, ODW will only become involved with OGC if
the regions are having a problem communicating with them.
A second item of importance to the regions concerned the problems associated with
getting the ORC's to review the primacy revision packages. We are currently working with OGC
on this issue, stressing the need for increased cooperation from the ORC's in completing then-
reviews expeditiously.
A timely review is critically important, particularly in light of the 90 day review
requirement found in Section 142.12(a)(l). The regulation allows EPA 90 days to review the
revision package once the region considers a submission to be complete. The region is to notify
the State when a revision package submission is considered complete. After the 90 day review
period, the region is required to notify the State in writing of EPA's decision to approve or
disapprove the submission, with an explanation given if the package is not approved. This
notification is mandatory.
A third issue which you should be aware of concerns the role of headquarters in the
extension process. Regions will be responsible for deciding when and under what conditions
States will receive extensions. The systems must be meeting the requirements of the Federal
regulation by the eighteenth month, and either the State or the region must be operating the
supervision program during the extension period.
Headquarters will advise the regions on specific extension applications, upon request, on
a State-byrState basis. Headquarters is currently working on a delegation agreement which will
allow the Regional Administrator to sign off on all delegation agreements on behalf of the
Administrator.
If you have any questions please call me at FTS 382-5543 or have your staff call Jamie
Bourne. He can be reached on FTS 382-5557.
Attachment
cc. P. Cook
ODW Division Directors
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG58
Attachment 1
HANDBOOK FOR EPA REVIEW OF
STATE PROGRAM REVISIONS
UNDER NEW PRIMACY REGULATIONS
FOR THE PWSS PROGRAM
U.S. Environmental Protection Agency
Office of Drinking Water
(202)-382-5522
HANDBOOK FOR EPA REVIEW OF PROGRAM REVISIONS
-------
UNDER NEW PRIMACY REGULATIONS
WSG58
TABLE OF CONTENTS
SECTION
PART 1 INTRODUCTION
PART 2 THE APPROVED PRIMACY PROGRAM
PART 3 CONTENTS OF PROGRAM REVISION REQUEST'S
PART 4 THE PROGRAM REVISION PROCESS
PART 5 THE EXTENSION PROCESS
PART 6 THE ANNUAL PROGRAM PLANNING AND
REVIEW PROCESS
PART 7 THE PROGRAM WITHDRAWAL PROCESS
PAGE
1-1
2-1
3-1
4-1
5-1
6-1
7-1
APPENDICES
A. Checklist of Program Elements
B. Primacy Revision Crosswalk-Sample Format
C. Model of Attorney General's Statement
D. Public Notice
-------
WSG 58
LIST OF TABLES AND FIGURES
TABLE PAGE
Table 1.1 - Summary and Status of EPA Regulatory Actions Under the SDWA
Amendments Enacted June 19,1986 1-1
Figure 1.1 - Review Process of State Request for Approval of Program Revision
1-3
Table 1.2 - Summary of -Changes to Program Revisions Process 1 -5
Table 2.1-The Approved Primacy Program 2-2
Table 4.1 - Timetable for Requests for Approval 4-3
Figure 4.1- Public Notice Process and Schedule 4-7
Figure 5.1- The Extension Process 5-2
Table 5.1- Circumstances Supporting Extension Requests 5-3
Figure 5.2 - Extension Request Checklist 5-5
Table 7.1 - Overview of Primacy Withdrawal Process in 40 CFR 142.17(a)(2),
(3), and (4) 7-2
NOTICE: This document provides EPA's guidance on the Agency's review of State program
revisions under the Public Water Supply Program. The guidance does not establish or affect
legal rights or obligations. It.does not establish a binding norm and is not finally deterministic of
the issues addressed. Agency decisions in any particular case will be made applying the law and
regulations on the basis of specific facts and actual actions.
-------
WSG58
PART 1 - INTRODUCTION
THIS GUIDANCE WILL AID REGIONAL
IMPLEMENTATION OF NEW
PRIMACY REVISION PROCESS
On November 30,1989, the EPA Administrator promulgated revised State primacy regulations under
Subpart B, Part 142, formally establishing for the first time the requirements and procedures States
must follow to request EPA approval of program revisions to approved State primacy programs. The
revised regulations appeared in the Federal Register on December 20,1989, at 54 FR 52126. This
document provides guidance to the Regions on implementing the new program revision process.
Currently, all but two States, the District of Columbia, and the Indian lands have primacy for the
Public Water System Supervision (PWSS) program. The 1986 Safe Drinking Water Act (SDWA)
amendments greatly increased the scope and content of the PWSS program. States will have to
adopt all new and revised EPA regulations to retain primacy.
The amendments require EPA to promulgate standards for 83 drinking water contaminants by 1989,
25 more by 1991, and 25 additional contaminants every three years thereafter. EPA also must
specify criteria under which filtration is required as a treatment technique for public water systems
that use surface water and to require disinfection for all systems. Public notification requirements
had to be modified, too. Table 1.1 lists the new requirements and the promulgation schedule, which
is driven by the 1986 amendments. States will have 18 months from the date the regulation is
promulgated to submit a final request for approval of their revised primacy program.
TABLE 1.1 - SUMMARY AND STATUS OF EPA REGULATORY ACTIONS
UNDER THE SDWA AMENDMENTS ENACTED JUNE 19,1986
Requirement Citation
Final Actions to Date
Volatile Organic Compounds 52 FR 25690, July 8, 1987
Public Notification 52 FR 41534, October 28, 1987
Filtration and Disinfection of Surface Water 54 FR 27486, June 29, 1989
Total Coliforms . 54 FR 27544, June 19, 1989
Proposed Actions to Date
Lead/Copper 54 FR 31516, August 28,1988
Inorganics/Synthetic Organics (38 compounds) 54 FR 22062, May 22,1989
Additional Contaminants to be Regulated
Radionuclides
Additional Inorganics/Synthetic Organics (25 contaminants)
Disinfection for Groundwater/Disinfection By-products 1"
Additional 25 Contaminants in 1991
Additional NPDWRS in 1994 and Every Three Years Thereafter
1-1
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WSG58
A NEW REGULATORY PROCESS
HAS BEEN ESTABLISHED
The new §142.12 establishes regulatory requirements, application procedures and decision process
for State program revisions. Figure 1.1 presents a diagram of the process and the associated timing
of various aspects of the process. In essence, when EPA promulgates a new or revised National
Primary Drinking Water Regulation (NPDWR), States must review their current primacy program,
and determine which program elements need to be revised. States must revise regulations or other
program components by adopting regulations that are at least as stringent as the federally specified
requirements, and submit a request to EPA for approval of the revised primacy program
(§142.12(a)). This request must be submitted within 18 months after promulgation of new or revised
regulations unless the State requests and the Region approves an extension of up to two years
(§142.12(b)). Extensions will be approved if the State meets certain criteria and agrees to abide by
conditions negotiated as part of the extension. Extension criteria and conditions are explained in Part
5 of this guidance.
The State request must include documentation needed to update the approved primacy program and
identification of elements that have not changed (§142.12(c)). Specifically, States must submit a
checklist showing what, program elements are updated by the request, a crosswalk comparing the
new EPA requirements to the State version (the side-by-side comparison), materials that respond to
any special primacy requirements under §142.16, and an Attorney General statement certifying the
legality and enforceability of the State regulations (the AG's statement is not needed until the
complete and final request is submitted). These materials are described in more detail in Part 3 of
this guidance.
EPA's review process is specified in §142.12(d). A two-step process, described in Part 4 of the
guidance, is allowed by the regulation and encouraged by EPA to help States respond to the
requirements by providing an early review and tentative determination in response to the State's
preliminary request, followed by an expedited review of the final request. State regulations and
program materials may be in draft form for the preliminary review, while complete and final
materials are required for the final request. EPA's tentative determination on the preliminary request
will include comments or suggestions for the State's use in developing its final request.
EPA is to act on the State's final request for approval of a program revision within 90 days. EPA's
determination of primacy status is subject to public notice and hearing procedures specified in
§.142.13.
1-2
-------
WSG58
Figure 1.1
Review Process for State Request for Approval of Program Revisions
m
/^
/Mee
for Ex
•\pf142
m
Granted
L
EPA Promulgates
New or Revised
NPDWRor
Regulation
Time
St
X
Stepl
State, at Its
Option, Submits
Preliminary
Request to EPA
§l42.l2(dXD
(
I
">v- • "
•i^&x
tension]
•feK/4
r^ Step 2
Jv
EPA Review
& Tentative
Determination
§142.12(d)(lX«)
^^11
r
••
State Submits
Complete & Final
Request to EPA
§142.12(d)(2XO
__. Additional Time -**"""*"^ ,
^
i
EPA Review
& Determination
§142.12{d)(3)
. -
x
EPA Publishes
Notice of Proposed
Approval /Disapprove
§142.13(8 & b)
4.
.
EPA Approves or
Disapproves
•Program Revision
*
-''•'. «,
•
Line
irt
9 Mot.
90
Days
12MOS.
18 Mos*
{unless
extension
given)
90
Days*
21MOS.
Regulatory
Deadline
1-3
-------
WSG58
CHANGES TO THE CURRENT PROGRAM
REVISION PROCESS ARE FAR-REACHING
The revised primacy rule establishes the timing, process, and contents of the State request for
approval of all program revisions to adopt new and revised NPDWRS. The revised primacy rule
requirements do not apply to the public notification regulations, promulgated on October 28,1987,
nor to the VOCs regulations, promulgated on July 8,1987, since these regulations were in effect
before the revised primacy requirements were promulgated. However, a State has the option to apply
this rule to VOCs and PN if they choose to do so. The new requirements are to be followed for the
Surface Water Treatment Rule and Total Coliform Rule, as well as all future NPDWRS.
The changes to the current program revision process mandated by the new primacy regulation are
summarized in Table 1.2.
The basic primacy requirements in the original regulation were left unchanged, except for two
modifications: 1) States must agree to report new violations and State enforcement actions to EPA
on a quarterly, rather than annual, basis; and 2) for States with variances, the regulation requires the
State to adopt the Administrator's determination of best available technology (BAT) in the State
variance requirements (a third modification, very minor, describes the State emergency plan
requirement can be met for groundwater sources through the State wellhead protection program's
contingency plan. These new requirements apply to State program revisions and to. States applying
for initial primacy).
The preamble to the revised rule also reaffirms the Region's authority to request States to submit
materials on a one-time basis to build a complete and updated file of the approved primacy program.
These materials serve as the baseline "agreement" with the State before reviewing program revisions.
CONTENTS OF THE GUIDANCE
The remainder of the guidance is divided into six parts, outlining each major component of the
program revision process. The guidance includes a variety of checklists and other aids for managing
the primacy review process. These checklists are included in the text where appropriate and others
are provided in an appendix for ease in copying them for day-to-day use.
The guidance has been prepared hi a loose-leaf-notebook format so that it can be updated easily to
reflect the changes necessary for each new program requirement. Updates will be provided as
appropriate.
1-4
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WSG58
Full Primacy
and
Deadlines.
Extension
Process.
Update to the
Approved
Primacy
Program.
Crosswalk
and
Checklist
Attorney
General
Certification.
Two-Step
Process for
EPA Review.
Special
Primacy
Program
Requirement
sand
Reports.
TABLE 1.2 - SUMMARY OF CHANGES TO
PROGRAM REVISION PROCESS
States must adopt all new and revised EPA NPDWR's within 18 months of
promulgation to retain primacy, unless EPA grants an extension, not to
exceed two years, for cause. States that exceed the 18-month deadline
without an approved extension are subject to initiation of primacy
withdrawal procedures.
The new regulation requires the State to request EPA approval of an
extension before the 18-month period passes, based on extension criteria in
the regulation. The State must agree to meet certain conditions during the
extension period to be eligible for the extension.
The new regulation defines for the first time the "approved primacy
program" at the time the program revision is requested. States must submit
materials sufficient to update the approved primacy program with then-
request for EPA approval of each program revision and otherwise keep
EPA informed of changes to the approved program.
The new regulation specifies that the States submit a side-by-side
demonstration with each State request for program revision that the State
meets all EPA primacy requirements under §142.10, including that the
State regulations are "no less stringent." A completed checklist of the
elements of the approved primacy program and crosswalk of each federal
NPDWR to theState regulations must be submitted with each State request.
The new regulation requires an Attorney General's statement with the
complete and final State request, certifying that the State statutes and
regulations for the program revision are legally adopted and enforceable.
The new regulation allows States, at their option to submit a Review
preliminary requests containing draft materials. This optional first step is
intended to raise and resolve issues early in the process. The EPA final
determination is based on the complete and final request and is subject to
public notice and hearing (upon request).
The new regulation incorporates by reference the primacy requirements
and special State reporting under the individual NPDWRS. These special
primacy requirements must be met for EPA approval of the program
revision.
1-5
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WSG58
PART 2 -THE APPROVED PRIMACY PROGRAM
Section 142.10 defines the requirements States must meet to obtain or retain primacy. These
requirements are based on the five statutory requirements, as stated under Section 1413 of the
SDWA:
• Adoption of State regulations that are no less stringent than federal requirements
• Adoption and implementation of enforcement procedures
• Recordkeeping and reporting
• Variances and exemptions
• Planning for provision of safe water in emergencies
Section 142.10 includes 15 requirements within the five statutory categories. Section 142.1 l(a)
defines the materials States were required to submit with then" initial application for primacy. The
§142.1 l(a) materials comprise the "approved primacy program."
Although States do not have to reapply for primacy when program revisions are needed, before the
Region can begin reviewing revised State primacy programs, the current approved primacy prgram
materials must be complete and readily available. Table 2.1 lists those program program materials
as they relate to the § 142.10 requirements.
The approved primacy program defines the "contract" between the primacy State and EPA. Regions
will need to review and update their files on approved State primacy programs to define the baseline
from which program reviews will be made. This can be accomplished with the State through the
annual review process (§142.17) or through the request for approval of program revisions, whichever
comes first. Once the file has been updated, future program revision material can refer to this
baseline.
Note: For States and Indian Tribes applying for primacy after the new primacy regulation is in
effect, the application must include:
• An A-G statement that certifies that the laws and regulations adopted by the State or
tribal ordinances to carry out the program were duly adopted and are enforceable
[§142.1 l(a)(6)];
• A checklist and crosswalk demonstrating adequate authority to meet the requirements
of §142.10 [§142.11 (a)]; and
• Compliance with special primacy requirements defined for each new and revised
NPDWR.
2-1
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WSG58
TABLE 2.1 - THE APPROVED PRIMACY PROGRAM
Requirement §142.10 Materials Needed to Fulfill Requirement
For Initial Primacy Approval [§142.1 l(a)]
Adoption of Regulations No Less Stringent
Adoption of drinking water regulations which are no less stringent The text of the State primary drinking water regulations with reference to
than the national primary drinking water regulations (NPDWRs) in those program elements that vary from comparable federal regulations set
effect. [40 CFR142.10(a)J forth in Part 142 and a demonstration that any different State regulation is at
least as stringent as the comparable EPA regulations. [§142.1 l(a)(l)]
Maintenance of an inventory of public water systems. [40 CFR A description of the State program to maintain current inventories of PWSs.
142.10(b)(l)] ' [§ 142.ll(a)(2)(i)] Note waivers in §142.1 l(a)(3)(i) and (ii).
Systematic program for conducting sanitary surveys of public water A description of the State program to conduct sanitary surveys and system
systems in the State, with priority given to sanitary surveys of public for setting priorities. [§ 142.1 T(a)(2)(ii)]
water systems not in compliance with State drinking water
regulations. /'40 CFR 142.10(b)(2)]
Establish and maintain a State program to certify laboratories A description of the State's certification program for analytical laboratories
conducting analytical measurements of contaminants identified in and listing of certified responsible officers. [142.11 (a)(2)(iii)]
State primary drinking water regulations. Designate a laboratory
officer or officers certified by the Administrator that are responsible
for the State's certification program. [CFR 142.10(b)(3)J
Assurance of the availability of certified State laboratory facilities
capable of performing analytical measurements of all contaminant
WRl142JO(b)(4)]
specified in the State s primary drinking water regulations. [40
Ox
Identification of certified laboratory facilities and a statement of availability
'aminants to perform required analyses. [§142.1 l(a)(2)(v)]
Establish and maintain activities to assure that the design and Description of State program activity to assure that design and construction
construction of new or substantially modified public water system of new or substantially modified PWS facilities will be capable of
facilities will be capable of compliance with the State primary compliance with State requirements. [§ 142.1 l(a)(2)(v)]
drinking water regulations. [CFR 142.10(b)(5)]
Enforcement Procedures
Has adequate authority to apply State primary drinking water Copies of statutes and regulations that provide for the regulation of all PWSs
regulations to all public water systems in the State covered by within the State and enforcement of State regulations, demonstrating
NPDWRs. [40CFR142.10(b)(6)(i)] adequate authority. [§142.11(a)(2)(vi)]
I TABLE 2.1 (CONTINUED) .
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8
10
11
12
13
14
15
Has adequate authority to sue in courts of competent jurisdiction to
enjoin any threatened or continuing violation of State regulations.
[40 CFR 142.10(b)(6)(ii)]
Right to enter and inspect public water systems, including the right
to take -water samples, whether or not the State has evidence that the
system is in violation of an applicable legal requirement. [40 CFR
142.
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Description of State procedures for judicial action with respect to
noncomplying PWSs. [§142.1 l(a)(2)(vii)]
Copi
State res
[§142.
ies of State statutes and regulations that provide for enforcement of
e regulations, showing the State's authority to enter and inspect PWSs.
I2.l!(a)(2)(vi)]
Authority to require suppliers of water to keep appropriate records
and make appropriate reports to the State. [40 CFR
142.10(b)(6)(iv)]
Authority to require public water systems to give public notice that
is no less stringent than EPA requirements in $1 42.32 and
Copies of State statutes and regulations that provide for enforcement of
State regulations, showing the State's authority to require reporting.
142.16(a). [40 CFR 142.10(b)(6)(v)]
Authority to assess civil or criminal penalties for violation of the
State's primary drinking water regulations and public notification
requirements, including the authority to assess daily penalties or
multiple penalties when a violation continues. [40 CFR
142.10(b)(6)(vi)]
Copies of State statutes and regulations that provide for enforcement of
State public notice regulations. [§ 142.1 l(a)(2)(vi)]
Copies of State statutes and regulations that provide for enforcement of
State regulations and a brief description of State procedures for
administrative or judicial actions against PWSs not hi compliance with
current regulations. {§ 142.1 l(a)(2)(vi)]
Has established and will maintain recordkeeping of its activity
under paragraph §142.10(a), (b) and (d) in compliance with "
§142.10 and 142.15. [40 CFR 142.10(c)J
Recordkeeping and Reporting
activities A statement that the State will comply with reporting and recordkeeping
requirements specified in §142.14 and §142.15. [§142.11
Variances and Exemptions •/
If it permits variances or exemptions, or both, from the^ requirements The text of statutes and regulations that apply and a demonstration that they
than Section 1415 and 1416 of the SDWA.
of the State primary drinking water regulations, it shall do so under
conditions and in a manner no less stringent than the requirements
under sections 1415 and 1416 of the Act. [40 CFR 142.10(d)]
are no less stringent
[§142.1 l(a)(4)]
Emergency Planning
protection program <
1 under the
i requirement.
PART 3 - CONTENT OF STATE PROGRAM REVISION REQUESTS
SPECIFIC MATERIALS MUST BE SUBMITTED
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Section 142.12(c) of the final rule addresses the contents of a state's request for approval for changes
to the approved primacy program.
The states are not being asked to 'reapply1 for primacy, but rather to update their program to conform
with new federal requirements. States must submit updated documentation for each program
element of the approved primacy program that is affected by the revision. The text of the nnaTrule
specifies that the request for approval shall include (among other things) "the documentation
necessary to update the approved state primacy program, with identification of those elements of the
approved primacy program that have not changed because of program revision" (40 CFR 142-
ll(c)(l)(i)). The documentation must include:
• Achecklist identifying which program elements have and have not been affected by
the revision;
• A side-by-side comparison or crosswalk of state and federal authorities;
• Additional materials required by each specific EPA regulation under § 142.16.
• For the final request for EPA approval of the program revision, an Attorney General
(AG) statement certifying that the state's laws and regulations have been adopted and
are enforceable.
These materials are discussed in the sections that follow.
The Checklist is a Table of Contents
for the State Request
A simple checklist, provided in Appendix A, should be used by the state to indicate the program
elements that are and are not changed in response to the revised federal regulation. In addition to
the 15 program elements specified by §142.10, the checklist includes the additional items that will
be part of the state submission: the response to any special primacy requirements under §142.16 and
the Attorney General's statement (for final requests only).
For each item indicated as "applicable" on the checklist, appropriate materials must be provided.
Such materials will include the text of state statutes and regulations that have been revised and
descriptions and appropriate .documentation of revised program elements. See Table 2.1 for an
outline of the program elements and supporting materials in the approved primacy program subject
to revision.
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Crosswalk Compares Federal and State Requirements
Part of the documentation required by §142.12(c) is a comparison of federal requirements and state
authorities. The comparison should cite statutes, regulations, and judicial decisions as appropriate
to demonstrate that the state s authority is adequate to meet the requirements of the primacy program
elements (§142.10).
Sample charts provided in Appendix B can be used as a basis for the required comparison. The
crosswalk forms (first page only) include general primacy requirements (40 CFR141), recordkeeping
and reporting (§142.14 and 142.15), and special primacy requirements (U42.16). For each new or
revised NPDWR, Headquarters will develop a form outlining the federal requirements to aid the
states in completing this requirement. Each form lists the federal requirements and citation and
provides space for the state citation and comments or reference to supporting materials or
explanation.
Recordkeeping and Reporting and Special .
Primacy Requirements Must be Met
New recordkeeping and reporting requirements have been specified by §142.14 and § 142.15. These
new requirements may result in state program revisions to meet the conditions of new or revised
NPDWRs. Appropriate documentation will be needed and should be indicated an the crosswalk
form (see Appendix B). Section 142.16 will include requirements specific to each NPDWR or other
program revision. Specific guidance will be provided on what needs to be included in the State
primacy program revision process as each new regulation is developed and promulgated. A sample
crosswalk form for special primacy requirements is included in Appendix B.
The Attorney General's Statement
Certifies Enforceability
In addition to the checklist and crosswalk, 40 CFR 142.12(c)(iii) specifies that a complete and final
state request must include a statement by the state Attorney General (or the attorney for the state
primacy agency if it has independent legal counsel as defined in §142.12(c)(iii)) certifying that the
laws and regulations of the state promulgated to adopt the specific NPDWR were duly adopted and
are enforceable to carry out the requirements of the cited NPDWR. The independent counsel must
be able to represent the agency in court. The Region may require further involvement by the
Attorney General where necessary to resolve primacy issues. Any required supplemental statement
must address all issues concerning adequacy of state authorities identified in EPA's review. Program
revision requests will require an Attorney General's statement unless specifically waived by the
Administrator on a rule-by-rule basis.
The Attorney General statement is required to secure the opinion of the official charged by the State
with enforcing the laws of the State. The Attorney General statement is a central part of a State's
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final request for approval of revisions to the approved primacy program. EPA will rely on the
certification by the Attorney General that there are no legal barriers to State enforcement of the new
State regulations as reviewed by EPA. EPA does not require any specific format for the Attorney
General's statement; however, a model Attorney General statement is provided in Appendix C.
Preliminary requests for approval of program revisions need not include an Attorney General's
statement; however, these requests must include all other materials outlined above in draft form.
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PART 4 - THE PROGRAM REVISION PROCESS
NEW AND REVISED NPDWRS WILL
REQUIRE REVISION OF STATE PROGRAMS
Section 142.12(d) of the final rule details the process that EPA and the States must undertake for
State adoption of new and revised NPDWRS.
The Section 142-12 process for States to request EPA approval of State program revisions applies
only to State revisions that adopt new or revised EPA regulations. It does not apply where a State
initiates a change in its primacy program unrelated to an EPA regulatory change.
A TWO-STEP PROCESS IS PREFERRED (but is not required)
The approval of State program revisions is recommended to be a two-step process culminating in
a complete and final submission within 18 months after promulgation of new or revised EPA,
regulations. See Figure-2.1 for a diagram of the two-step process and the timing of State submittal
and EPA review. These steps as described in 1142.12(d)(l) and (2) are:
• Submission of a preliminary request to EPA for review by the Region (Optional).
At the State's option, the State may submit, a preliminary request for EPA review and
tentative determination. The request should contain a draft of all materials required
by 142.12(c)(i) to demonstrate compliance with federal standards, except that a draft
AG's statement need not be submitted. EPA will make a tentative determination of
whether the State primacy program application meets applicable requirements,
• Submission of a complete and final request for approval. In accordance with
142.12(c)(l) and (2), this submission must be complete and final, and must include
the Attorney General's statement. The State also must include the State's response,
to the review comments and/or program deficiencies identified in the tentative
determination (if a preliminary request was submitted). EPA will approve or
disapprove the State primacy program.
The contents of a request for approval of program revisions are discussed in Part 3 of this guidance.
The State and the Region should agree to a process and schedule for completing the requirements
for primacy as soon as possible after promulgation of each new or revised NPDWR ideally within
three months. The Agreement should address questions such as: Will the late submit a preliminary
request for approval?; What is it likely to contain?; If no preliminary request is planned, what steps
will the State take to ensure that its final request will be adequate and approvable?; and when will
the final application be submitted?
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States should be encouraged to share draft materials with EPA on a regular basis prior to the
initiation of a formal preliminary request to determine what materials may be deficient or lacking.
Table 4.1 illustrates the timing of State and EPA actions and responsibilities during the review
process. The Region and each State should develop a schedule for the program revision process
within three months of the promulgation of each NPDWR.
States should be made aware that submission of only a final request for approval puts the State at
considerable risk that issues, could arise at the time of final application review that could jeopardize
primacy. Issues raised after State regulations are final, for example, could make it more difficult for
States to make the necessary changes within the allowed timeframe. EPA believes that the two-step
process will lessen potential timing conflicts in enacting State statutes and regulations and reduce
the possibility of noncompliance or a protracted extension period. The final regulation allows 18
months for States to submit then: final applications specifically to give States and the Agency enough
time to engage in a two-step process.
Headquarters Review of State Program Revisions
Within Headquarters, the Office of Drinking Water (ODW), the Office of General Counsel (OGC),
and the Office of Enforcement (OE) all will be involved in the review process.
ODW will select the first full preliminary package received by each region, unless adopted by
regulation, for detailed review in Headquarters. For the program selected for detailed Headquarters
review, the Region will need to provide a complete State package, including all regulations and
program description material. ODW and OE will normally waive concurrence on all remaining State
programs, although they will retain the option to review additional State programs should it become
necessary.
OGC will depend on their Regional Counsel (ORC) to conduct the detailed reviews to ensure
enforcement compliance, and then concur on the ORCs review.
OE will conduct one detailed review (the same State that ODW selects) in each Region for each
regulation. After completion of this review, OE will waive concurrence on all other States in that
region.
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TABLE 4.1
SUGGESTED TIMETABLE FOR REQUESTS FOR APPROVAL
Event
Promulgation of new or revised NPDWR or regulations
Regions notify States that rule was promulgated; establish
process and schedule for Region/State review and approval
States and Regions agree on plan for State application and
timeline
Step 1 (optional)
State submits preliminary request
EPA Review
Regional
Headquarters
Region notifies State of tentative determination
Step 2
State submits complete and final request
EPA Review** Regional
Headquarters
Region notifies State of Determination, issues public
notice, and conducts hearing process
Region publishes final determination
Event Time
0
3 mo.
2 mo.
4 mo.
60 days
30 days
90 days
6 mo.
60 days
30 days
90 days*
Total Time
0
3 mo.
5 mo.
9 mo.
11 mo.
12 mo.
12 mo.
18*mo.
20 mo.
21 mo.
21 mo.
21 mo.
* Deadline cited in regulations
** This review will be comprehensive if no preliminary request was submitted (HQ will review
one State in each Region)
Note: Extensions before the complete and final review may be requested during the process, but
States should allow adequate time for the Region to review and grant an extension within the 18
month deadline. See part 5 of this handbook.
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Step 1: Preliminary Request Allows
Early Identification of Issues
The preliminary request is designed to initiate dialogue between the State and the Region and
provide an opportunity for the Region to perform an initial evaluation of the revisions to State
primacy programs. The initial review is intended to help ensure that problems or necessary changes
to a proposed program revision are identified early in the process when adjustments should be
relatively easy to make, rather than after State regulations are final.
The preliminary request should be submitted by the nine-month point. Although it should be as
complete as possible, at a minimum it should contain the State's proposed regulations and a draft of
the checklist and crosswalk. See Part 3 for a discussion of the contents of a State request for
approval of program revisions. EPA should, although it is not required, review the preliminary State
request within 90 days and provide the State with its tentative determination, including comments.
The State can then use this information hi preparing its final application by the 18-month deadline.
Requests submitted to the EPA Regional Offices should be reviewed by the Regional program office
and the Office of the Regional Counsel (ORC) concurrently. The ORC should review the crosswalk
and determine the statutory enforcement capabilities and regulatory mechanisms for ensuring
compliance with the State primacy program. The Division Director will then review the request and
supporting materials to make a tentative determination. For the States that ODW will review in
detail, the Region should forward the State request for primacy to ODW as soon as possible, but
certainly within 60 days. All information submitted must indicate clearly the status of the State
revisions (final draft, final or enacted) and whether the Region has provided comments to the State.
The Region should submit the following information for dissemination to Headquarters reviewers:
• The Region's draft determination letter, including the draft ORC concurrences;
• Completed checklist requirements;
• Completed crosswalk forms; and
•
• Detailed discussion and relevant background documents regarding major issues (if
any) that arose during the Regional preliminary review, as well as any other
information on the State primacy program that may be of potential significance to
national policy.
Upon completion of EPA's initial review, the Region (Water Division Director) should notify the
State of the Agency's tentative determination. EPA's tentative determination will include a list of
changes or additions that the State should complete before submitting its final request. The
suggested changes should be keyed to the required program elements (see Part 2).
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Step 2: The Final Request Must Be Complete
The final request for approval of program revisions must be received by EPA within 8 months of the
promulgation of new or revised regulations unless an extension has been granted (the extension
process is discussed in Part 5 of this guidance).
The final request must include all State primacy program revision materials. These include the final
checklist and crosswalk signed by the State primacy agency and the signed AG statement, which was
not required for the preliminary request. The State regulations must be final, where possible, and
the State must respond to issues raised in the preliminary determination.
The Region will evaluate new or revised materials as well as the AG?s statement and recommend
a final determination of State primacy for concurrence by Headquarters. The review process may
include requests for supplemental opinions by the State Attorney General to address issues raised
by or unresolved in the State's submittal. In the event that a State participates only in single request
process, the review of the final request becomes a comprehensive review of all program material,
as described in Step 1.
The final review at Headquarters will vary according to whether or not the revision package was
reviewed in draft form. If a detailed review of one State in each Region was completed during as
the draft stage, Headquarters will only review that State revision package again to ensure that issues
raised during the initial review were addressed. If no preliminary review was done, ODW will
conduct a full review.
For the non-detailed review States, ODW and OE will normally waive concurrence, although
they will retain the option to review additional State programs should it become necessary. ODW
will work with OGC to set up a procedure for the OGC concurrence memorandum to be returned
directly to the region. Otherwise, ODW will only become involved in the nondetailed review
process if the regions are having problems communicating with other Headquarters offices.
Once the EPA Regions have determined that the final State request for approval has been received
and is complete the region is to notify the State of its determination that a complete package has been
submitted. The Agency then has 90 days (including the Headquarters review period) in which to
evaluate the request and approve or disapprove the State request for primacy. Either event requires
that the region promptly notify the State in writing of the final determination within the 90 day
period. The regulations also require that a notification of disapproval of the revised program shall
be accompanied by the Regional Administrator's statement of reasons supporting the decision.
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PUBLIC NOTICE AND OPPORTUNITY
FOR HEARING MUST BE PROVIDED
The Regional Administrator must provide public notice and opportunity for hearing on EPA's final
determination regarding a State's request for EPA approval of revisions to its primacy program
(142.12(d)(3)). Figure 4.1 shows the public notice process and schedule. The Regional
Administrator is required to publish the proposed determination, along with a statement of
supporting reasons, and notification that a public hearing may be requested. This information is to
be published in the Federal Register and general circulation local newspapers within 15 days of the
Regional Administrator's determination. Appendix D includes a sample of a public notice for Notice
of Determination and Request for Public Hearing.
Public notification must include at least one location in the State where the information submitted
pursuant to Section 142.12 is available for general inspection. All requests for public hearing must
be made in writing to the Regional Administrator within 30 days of the notification and it must
include the information described in 142.13(c).
If no public hearing is held, the Regional Administrator's determination becomes final and effective
30 days after the original public notice. A State receiving a denial of its request for approval may
apply to the Regional Administrator to change the final determination. The State must demonstrate
that all program deficiencies that resulted in the denial have been remedied without compromising
other required program elements.
NOTE: No EPA public notice or hearing is required for a tentative determination by EPA on a
State's preliminary request for approval of program revisions.
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Figure 4.1 - Public Notice Process and Schedule (§142.13)
RA Determination
of State Request
tor Program Revision
IS Days
RA Publishes
Notice of Determination in
Federal Register & Local
Newspapers
§142.13(0)
Request Denied
- Frivolous
- Insubstantial
. No Request for
Public Hearing:
.-.;- Determination
Becomes Effective
. $142.13(g) •
30 Days
Request for Public Hearing
§142.13(c)(1-3)
Request Granted - RA
Decides to Hold Hearing
JL
RA Publishes
Notification of Public
Hearing in Federal Register
and Local Newspapers
§142.13(d)
IS Days
Public Hearing Held
Pursuant to
§142.13(e)
RA Approves State
Request for Program
Revision; Revision
Becomes Part of
Approved Primacy
Program
i.
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PART 5-THE EXTENSION PROCESS
EXTENSIONS: AVAILABLE IF NEEDED
EPA recognizes that a State's preparation and submittal of a request for approval of program
revisions may take longer than the 18-month period provided by the rule for the completion of these
steps. The revised primacy rule (40 CFR 142.12(b)) provides the authority and process for the
Regional Administrator1 to extend the submission deadline for State program revisions for up to two
years under certain circumstances, based on discretionary authority under section 1413 (b)(l) of the
SDWA. Headquarters concurrence of the extensions will not be required. The new primacy rule has
been developed to provide as much flexibility as possible in granting extensions while ensuring that
the entire process is completed within defined constraints.
AN EXTENSION PROCESS HAS BEEN SET
States may request that the 18-month deadline for submitting the complete and final request for EPA
approval of program revisions be extended for up to two years in certain circumstances. The
extension request must be submitted to the Agency within 18 months of when EPA promulgated the
regulation. Regions should strive to get then* States to submit extension requests to EPA within 15
months in order that a decision can be made within the 18 month period. It will be incumbent upon
the regions to work out with the State what responsibilities each will have in terms of implementing
the regulation by the end of the 18 month period. The approval of an extension is not automatic, and
the length of the extension granted will depend on the State's need and the efforts it has taken in
responding to program changes.
The extension process, diagramed hi Figure 5.1, is initiated by the State during the initial 18-month
period defined by the rule. During this time the State notifies EPA that it will be unable to meet the
deadline imposed by the rule. EPA Regional Offices also should contact their respective States to
identify those that will be requesting an extension so that staff resources ran be allocated at the
proper time to review the initial set of program revisions as they are submitted. This will provide
the opportunity for the Region to assist those States requesting an extension and minimize problems
at the time the extension request is due.
When the State initially notifies EPA of its intent to file for an extension, sufficient information
should be gathered to demonstrate that the State is taking the actions necessary to be granted an
extension.
1 Delegation of this authority from the Administrator to the Regional Administrator is in
process. Headquarters concurrence of extensions will not be required.
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Where an EPA Region believes that a State may have difficulty meeting the revised primacy
requirements, the Region may urge the State to apply for an extension to allow the Region and State
to evaluate the program and take any steps needed to build capability.
AN EXTENSION REQUEST MUST MEET CERTAIN CRITERIA
For an extension to be granted, the State must demonstrate to EPA that it is making a good faith
effort to meet the requirements of the primacy program and cannot meet the original deadline for
reasons beyond its control. A key part of the application for an extension will be the State's proposed
schedule for submission of its complete and final request for approval of a revised primacy program.
The application must also demonstrate that the State meets at least one of the following criteria:
• Legislative or regulatory authority to enforce the new or revised requirements is
lacking; or
• Program capability is inadequate to implement the new or revised requirement; or
• The State wants to group two or more program revisions in a single legislative or
regulatory action.
Each State may face unique circumstances that could preclude the timely submission of its program
revisions, so the reasons for granting an extension will vary. Examples of such circumstances are
shown in Table 5.1.
TABLE 5.1 - CIRCUMSTANCES THAT MIGHT SUPPORT REQUESTS
Statutory barriers, regulatory barriers - biennial legislative sessions
- lack or regulatory authority to enforce new requirements
Temporary lack of program capability - insufficient resources (staft7$)
• lack of adequately trained staff
- inadequate procedures, guidelines, and policies
Clustering of program revisions - need to use limited State program resources efficiently
The State must include with its extension request a schedule setting forth when and how it will be
able to adopt and effectively implement the new provisions. If a State request for an extension is
based on a temporary lack of program capability, the State must provide a plan that identifies the
steps it will take during the extension period to remedy the deficiencies. These steps might include:
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• Seeking an increase in program resources;
• Training of existing staff to implement the revised regulation; and
• Development of procedures, guidelines, and policies necessary to implement the
revised program.
Figure 5.2 provides a checklist the Region can use in reviewing extension requests. EPA Regions
will review extension requests on a case-by-case basis. States must justify the request.
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Figure 5.2 EXTENSION REQUEST CHECKLIST
L Reasons for State Request
. Clustering of Program Revisions
Statutory Barrier
Regulatory Barrier
Lack of Program Capability
insufficient resources .
funding level
lack of adequately trained staff
inadequate procedures, guidelines, and policies
Other '
IL Actions Taken by the State to Justify an Extension Scheduled Dates
(or attachments)
Seeking Increases in Program Resources ._
Training Existing Personnel/Revising Training Programs __;
; Revising State Regulations
Developing revised/new procedures, guidelines and policies .
Other '
IE. Extension Decision
Extension Request Approved Date:__/__/_
Period of extension __/__/_, to __/_/__
Extension Request Denied Date:__/_/_
Reason Cited: .__
IV. Conditions of the Extension •
During the extension period the State will:
(Check all that apply) .
__Inform public water systems of the new requirements and the fact that EPA will be
overseeing their implementation until the State's program is approved
Collect and store laboratory results and other compliance data
Provide technical assistance to public water systems
Provide EPA with the information required under section* 142.15 of the primacy rule
Other _, ' •
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THE PROGRAM WILL BE OPERATED JOINTLY
DURING THE EXTENSION PERIOD
If an extension is to be granted, the Region will negotiate certain conditions with the State. The
revised primacy rule does not impose specific conditions on a State during the extension period. The
specific conditions tied to an extension request approval are to be negotiated by the Regions and
States during the approval process.
The conditions for receiving an exception could include, as decided on a case-by-case basis, what
the State agrees to:
• Inform public water systems of the new EPA (and upcoming State) requirements and
that the Region will be overseeing the implementation of the new requirements until
the State's program revision is approved;
• Collect, store, and manage laboratory results and other compliance and operational
data required by the EPA-regulations;
• Conduct informal follow-up on violations (e.g., telephone calls, letters) and assist the
Region in the development of the technical aspects of enforcement actions;
• Provide technical assistance to public water systems;
• Provide the Region with all the information required under §142.15 on State
reporting; and
• Take specific steps during the extension period to remedy the deficiency (for States
whose request for an extension is based on current lack of program capability
adequate to implement the new requirements).
It cannot be over-emphasized that the extension process, specifically the allowance of an extension,
does not postpone the requirements of the specific regulation on the systems, nor the necessity for
either the State or EPA to operate a supervision program. The systems must be meeting the
requirements of the Federal regulation by the eighteenth month, and either the State or the Region
must be operating the supervision program. Any portions of the program not being implemented by
the State must be carried out by the Region. This includes not only enforcement activities but
activities such as notifying systems of their responsibilities, assuring that systems have at least one
approved laboratory to which they can send samples, collection and analysis of monitoring results,
etc. It also encompasses making decisions such as whether an operator is qualified to operate a
treatment plant under the surface water treatment rule (SWTR), which systems are required to filter
under the SWTR, and whether to approve a system's request for a vulnerability waiver. As noted
above, while the Regions and States can negotiate who will be responsible for each necessary
implementation activity, it should be made clear to the State that the Region will be implementing
all those not carried out by the State.
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PART 6 - THE ANNUAL PROGRAM PLANNING
AND REVIEW PROCESS
THE ANNUAL GRANT PROCESS SUPPORTS
THE §142.17(a) PRIMACY REVIEW REQUIREMENT
This part of the guidance outlines the annual review of State programs conducted by the Regions and
how it is tied to the revised primacy rule process. The Regions review each State's annual program
grant workplan and accomplishments to identify potential program deficiencies for resolution and
to support the establishment of approved State primacy programs that will be effective hi meeting
current and future primacy requirements. The EPA Regional Administrator then issues a planning
target along with specific program guidance on items such as upcoming regulations to each State to
assist in completing an EPA funding application.
The State's application includes how the State will meet the special grant conditions and a proposed
annual workplan for activities related to the implementation of the SDWA for which it expects to
receive EPA funding. The State workplan identifies the program elements to be carried out during
the year, the outputs and products of these elements, the sources of program funding, a schedule for
the completion of each of the outputs, and the State agency responsible for implementing the
program.
The application is then reviewed by the Regional Administrator. If the application meets the
requirements, the Region will approve it and agree to provide the State with the funds when they are
appropriated by Congress.
To determine whether or not the applicant is in compliance with all the conditions of the grant
award, the Region conducts an evaluation of the State's program at least annually. The evaluation
is used to review State accomplishments, to determine if State activities are consistent with those
identified in the annual workplan, and to monitor what is being achieved with the grant funds
provided to the State.
In addition, the annual grant review process has become the forum for the State to inform EPA of
"minor" State-initiated program changes - those not associated with adoption of new or revised EPA
regulations — and of any transfer of program components to other State agencies. Review of plans
for regulatory changes and overview of implementation of extensions are also key issues in the grant
review process. Changes undertaken by a State that would significantly alter the operations of the
drinking water program, such as a reduction or elimination of State enforcement, should be
communicated promptly to EPA.
6-1
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WSG58
CERTAIN INFORMATION WILL BE NEEDED
IN A STATES ANNUAL WORKPLAN
Workplans submitted by the States over the next several years will need to include activities
specifically related to the program revision process in addition to the activities carried out by the
States on a continuing basis. These will include:
• The development .of State Statutes or regulations to support new NPDWRs to be
released by EPA. The development of the State Statutes or regulations must precede
the effective date of the new or revised NPDWRS, unless an. extension is granted
(see section 5).
• Whether any program transfers, regulatory changes or other modifications outside the
scope of the federal program are planned. This could take the form of a negative
declaration, i.e., that no such changes are planned or have occurred.
• Activities related to extension agreements.
THE ANNUAL PROGRAM EVALUATION ENSURES
PROGRAM CONSISTENCY AND DEVELOPMENT
The annual program evaluation will continue to function as a method to review State
accomplishments, to determine program consistency with the submitted workplan, and to monitor
the use of grant funds provided to the State.
The Regions will use the annual evaluation to verify that the State is complying with the conditions
attached to any extension period. This will assure that the conditions placed on the extension
consider the situation facing each State on a case-by-case basis. The evaluation will determine if the
State is continuing its good faith effort to achieve program revision approval and is complying with
the plan or schedule set forth to achieve primacy.
INFORMATION WILL BE OBTAINED FROM THE
STATES DURING THE ANNUAL EVALUATION
Like the rest of the annual grant review program, the evaluation will be tailored to reflect the needs
and concerns of a particular State program. The review will, however, be structured around basic
information that will need to be obtained for each State program. The questions posed to the States
during the evaluation to determine how primacy is being maintained should include:
• Is the State implementing and meeting the requirements of new or revised NPDWRs,
i.e., lab certification, enforcement, etc.?
6-2
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WSG58
• Have resources been allocated for writing new regulations and developing any
primacy application that will be necessary in the next program period?
• Will the State be able to implement and enforce the new or revised NPDWRs within
the prescribed time?
• Is any reorganization or reallocation of staff planned, underway, or recently
undertaken?
• Is an extension request planned?
• Is the State making a maximum effort to be involved in program administration
during any extension?
In addition, Regions should use the annual review to complete their files on currently approved State
primacy programs, as described in Part 2 of this guidance. The Region should review its files against
the checklist of program elements and primacy requirements described in this guidance and in 40
CFR 142.10 and 142.11 to determine what materials must be requested from the States.
6-3
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WSG58
PART 7 - THE PROGRAM WITHDRAWAL PROCESS
As provided in 40 CFR 142.17(a)(2), the Administrator may initiate a process to withdraw Program
approval if it is determined that the state program no longer meets the requirements of §142.10 and
has failed to request or has been denied an extension under §142.12(b)(2) of the deadlines for
meeting those requirements, or has failed to take other corrective actions required by the Regional
Administrator. A problem that might lead to withdrawal of program approval can be identified
through the annual review process or by other means, such as review of an extension request or of
compliance with the conditions of an extension.
The steps of the program withdrawal process are described in 40 CFR 142.17(a)(2),(3), and (4). The
process begins with a written notification to the state by the Administrator, explaining EPA's basis
for believing the state no longer meets the federal program requirements. If the decision is made to
proceed with the withdrawal action, EPA must provide public notice and the opportunity for a public
hearing. Table 7.1 illustrates the steps required for program withdrawal.
If the state responds with a plan to take corrective action, EPA's review will try to determine^
whether the proposal would be effective in returning the program to the point of fully satisfying the
program requirements. A key factor will be the demonstration of a good faith effort. A schedule of
actions with dates, methods, and resources identified should be provided.
The state must be made aware of the consequences of program withdrawal (or relinquishment).
These include the loss of the EPA program grant, which is linked to primacy under Section 1443 of
the SDWA, and the requirement to transfer facility files to EPA.
7-1
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WSG58
TABLE 7.1 - OVERVIEW OF PRIMACY WITHDRAWAL PROCESS
40 CFR 142.17(A)(2),(3), AND (4)
Actioq
When the RA determines that a State no longer meets the requirements of §142.10, the RA
shall notify the State in writing of EPA's intention to initiate primacy withdrawal.
State receives letter and prepares response
State sends response to RA (30-day time limit specified by §142.17(a)(3))*
RA receives response and review begins
The RA, after reviewing the States submission, will either determine that the State no longer
meets the requirements of §142.10 or that the State continues to meet those requirements and
shall notify the State of his or her determination. (If the RA decides that the State does satisfy
the requirements or is making sufficient progress, the withdrawal process can be stopped.)
Notice of the RA's determination is published in the Federal Register and newspapers, etc.[ 15-
day time limit specified by §142.13(b)]*
Public sends requests for hearing [30-day time limit specified by §142.13(c)]*
All requests are received by RA
Requests are Reviewed and a determination is made for or against holding a hearing:
• If the decision is against having a hearing, or no requests have been received, the
RA will determine at this point whether primacy should be withdrawn. The next
three steps are omitted if a hearing is not required. Pursuant to §142.13(g), if a
hearing is not held, the RA's determination becomes effective 30 days after
publication of the initial Federal Register notice.
• If a determination is made to hold a hearing, the RA prepares a notice for the
Federal Register
The notice appears in the Federal Register and news papers, etc., providing time, place, etc., of
the hearing
7-2
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WSG58
TABLE 7.1 (CONT.)
Action
• Public hearing is held (minimum of IS days after notice, as required by §142.13(d)
• Record of hearing is received by RA and review begins
• Final determination on primacy is made and a final notice containing the RA's order is
prepared for Federal Register publication (Pursuant to §142.13(f), if the RA's order affirms
the original determination, the withdrawal shall become effective, on the date of the order.)
• Notice published in Federal Register
[State may file petition for review within 45 days of issuance of the order, in an appropriate
Court of Appeals (SDWA Section 1448(a)(2)]
"'Required by regulation
7-3
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WSG58
APPENDIX A
CHECKLIST OF PROGRAM ELEMENTS
7-4
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WSG58
CONTENTS OF STATE REQUESTS FOR
APPROVAL OF PROGRAM REVISIONS
THE FOLLOWING MATERIALS ARE INCLUDED IN THE ATTACHED REQUEST FOR
APPROVAL OF PROGRAM REVISIONS:
Item Attachment Number
Checklist of Program Elements
Crosswalks
Primacy Revision
Special Primacy Requirements (§ 142.16)
Recordkeeping and Reporting (§ 142.14 and 15)
Program Description
Attorney General's Statement
7-5
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WSG58
CHECKLIST OF PROGRAM ELEMENTS
The checklist below is keyed to the listing of program elements shown in Table 2.1 in the guidance.
Refer to that table and the regulation cited her for details about each requirement.
Program Element
(1) Stringent as NPDWR - §142.10(a)
(2) Inventory of PWS - §142.10(b)(l)
(3) Sanitary Surveys of PWS - §142.10(b)(2)
(4) Certification of Labs - §142.10(b)(3)
(5) Available Lab Facilities - §142.10(b)(4)
(6) Design and Construction of New or
Modified Facilities - §142.lO(b)(5)
(7) Apply State Regulations to all PWS
Facilities -§142.10(b)(6)(i)
(8) Authority to Sue - §142.10(b)(6)(ii)
(9) Entry and Inspection - §142.10(b)(6)(iii)
(10) Records and Reporting -
§142.10(b)(6)(iv)
(1 1) Public Notice - §142.10(b)(6)(v)
(12) Civil/Criminal Penalties -
§142.10(b)(6)(vi)
(13) State Reporting to EPA - §142.10(c)
(14) Variances & Exemptions- §142.10(d)
(15) Emergency Planning - §142.10(e)
Other Requirements § 142. 1 6
Applies
to New
Regs
D
D
n
n
n
n
n
n
n
n
n
D
n
n
n
n
Does
not Reason (list attachments)
apply
D
D
D
D
D
D
D
D
D
n
D
D
D
D
D
D
7-6
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WSG58
APPENDIX B
CROSSWALK
(Example-TCR Rule)
*Please Note That a Crosswalk Will Be
Developed By Headquarters, with Regional
Review and Input, for Each Rule
-------
WSG58
PRIMACY REVISION CROSSWALK - TCR
FEDERAL
REQUIREMENT
DEFINITIONS
Confluent Growth
Domestic or other non-distribution
system plumbing problem
Near the first service connection
System with a single service
connection
Too numerous to count
COLIFORM SAMPLING
Routine monitoring; collection of
samples according to siting plan
Monitoring frequency for
community water systems - reduced
monitoring frequency for
community water systems serving
25- 1,000 people
Monitoring frequency for non-
community water systems using
only ground water (not under the
direct influence); systems serving
1,000 or fewer persons - reduced
monitoring frequency for non-
community water systems.
Monitoring frequency for non-
community water systems using
ground water (not under the direct
influence); systems serving 1,000
or more persons - reduced
monitoring frequency for months
the system serves 1,000 or fewer
persons
FEDERAL
CITE
•
141.2
141.2
141.2
141.2
141.2
141.21(8X1)
141.21(a)(2)
-141.21(a)(3)(i)
141.21(a)(3)(ii)
STATE AUTHORITY
STATUTE/REGULATION
' -
IF DIFFERENT FROM
FEDERAL
REQUIREMENT, NOTE
DIFFERENCE HERE &
EXPLAIN WHY "NO
LESS STRINGENT" ON
SEPARATE SHEET
II-1
DRAFT
-------
WSG58
PRIMACY REVISION CROSSWALK - TCR
FEDERAL
REQUIREMENT
Monitoring frequency for non-
community water systems using
surface water
Monitoring frequency for non-
community water systems using
ground water under the direct
influence; begin monitoring six
months after determined to be
under the direct influence
Collection of samples at regular
intervals
Collection of samples for systems
using surface water or ground
water under the direct influence;
systems not filtering
Special purpose samples
Repeat monitoring; total coliform-
positive samples
Repeat monitoring; sampling
location
Repeat monitoring; time period
Repeat monitoring; total coliform-
positive repeat samples
Repeat monitoring; systems
collecting fewer than five samples
per month with total coliform
positive samples
Repeat monitoring; waiver of
repeat monitoring requirements for
systems collecting fewer than five
samples per month with total
coliform positive samples; site visit
FEDERAL
CITE
141.21(a)(3)(iii)
141.21(a)(3)(iv)
141.21(a)(4)
I41.21(a)(5)
141.21(a)(6)
141.21(b)(l)
141.21(b)(2)
141.21(bX3)
141.21(b)(4)
141.21(b)(5)
141.21(b)(5)(0
STATE AUTHORITY
STATUTE/REGULATION
IF DIFFERENT FROM
FEDERAL
REQUIREMENT, NOTE
DIFFERENCE HERE &
EXPLAIN WHY "NO
LESS STRINGENT" ON
SEPARATE SHEET
n-2
DRAFT
-------
WSG58
PRIMACY REVISION CROSSWALK - TCR
FEDERAL
REQUIREMENT
Repeat monitoring; waiver of
repeat monitoring requirements for
systems collecting fewer than five
samples per month with total
coliform positive samples; problem
corrected within one month
Repeat monitoring; use of routine
samples as repeat samples
Repeat monitoring; results of repeat
samples included in determining
compliance with the total coliform
MCL
Invalidation of total coliform-
positive samples; improper sample
analysis
Invalidation of total coliform-
positive samples; samples resulting
from domestic or other non-
distribution system plumbing
problems
Invalidation of total coliform-
positive samples; result due to
circumstances not reflecting
distribution system water quality
Invalidation of total coliform-
positive samples; samples
producing turbid cultures,
confluent growth or colonies too
numerous to count
Sanitary surveys; community water
systems not collecting five or more
routine samples per month; initial
sanitary survey completed by June
29, 1994 - repeat surveys every five
years
FEDERAL
CITE
141.21(b)(5)(ii)
141.21(b)(6)
141.21(b)(7)
141.21(c)(l)(i)
141.21(c)(l)(ii)
141.21(c)(l)(iii)
141.2 l(c)(2)
141.21(d)(l)(i)
STATE AUTHORITY
STATUTE/REGULATION
-
IF DIFFERENT FROM
FEDERAL
REQUIREMENT, NOTE
DIFFERENCE HERE &
EXPLAIN WHY "NO
LESS STRINGENT" ON
SEPARATE SHEET
II-3
DRAFT
-------
WSG58
PRIMACY REVISION CROSSWALK - TCR
FEDERAL
REQUIREMENT
Sanitary surveys; non-community
water systems not collecting five or
more routine samples per month;
initial sanitary survey completed by
June 29, 1999 - repeat surveys
every five years, except systems
using protected and disinfected
ground water must repeat every ten
years
Sanitary surveys; states with
wellhead protection programs
Sanitary surveys; performance by
approved agent - responsibility for
survey
Fecal coliform/E. Co// testing;
analysis of total coliform-positive
cultures - reporting of fecal
coliform/E. Co// positive
Fecal coliform/E. Co// testing;
waiver of testing when total
coliform-positive samples are
assumed fecal coliform/Ł. Co//
positive
Analytical methodology; sample
volume of 100ml
Analytical methodology;
determination of presence or
absence of total coliform
Analytical methodology; approved
methods for total coliform analyses
Analytical methodology; use of
five tube or single culture MTF
techniques in lieu of 10- tube MTF
technique
FEDERAL
CITE
141.21(d)(l)(i)
141.21(d)(l)(ii)
141.21(d)(2)
141.21(e)(l)
141.21(e)(2)
141.21(f)(l)
141.21(f)(2)
141.21(f)(3)
141.21(F)(4)
STATE AUTHORITY
STATUTE/REGULATION
.
IF DIFFERENT FROM
FEDERAL
REQUniEMENT, NOTE
DIFFERENCE HERE &
EXPLAIN WHY "NO
LESS STRINGENT" ON
SEPARATE SHEET
II-4
DRAFT
-------
WSG 58
PRIMACY REVISION CROSSWALK - TCR
FEDERAL
REQUIREMENT
Analytical methodology; fecal
coliform analysis
Response to violation; State and
public notification of MCL
exceedance
Response to violation; failure to
comply with monitoring or sanitary
survey requirements
REPORTING
REQUIREMENTS
Reporting; systems failing to
comply with NPDWRs must report
to State within 48 hours
GENERAL PUBLIC
NOTIFICATION
REQUIREMENTS
Acute violations; presence of total
coliform, fecal coliform, or E. Coli
Mandatory health effects language;
presence of total coliform
Mandatory health effects language;
presence of fecal coliform or E.
Coli
MCLs FOR
MICROBIOLOGICAL
CONTAMINANTS
Effective date of Dec. 31, 1990 for
deletion of existing coliform MCL
and replacement with new
microbiological requirements
FEDERAL
CITE
141.21(f)(5)
141.21(g)(l)
141.21(g)(2)
141.31(b)
141.32(a)(l)(iii)(C)
141.32(e)(ll)
141.32(e)(12)
141.14
STATE AUTHORITY
STATUTE/REGULATION
IF DIFFERENT FROM
FEDERAL
REQUKEMENT, NOTE
DIFFERENCE HERE &
EXPLAIN WHY "NO
LESS STRINGENT" ON
SEPARATE SHEET
II-5
DRAFT
-------
WSG58
PRIMACY REVISION CROSSWALK - TCR
FEDERAL
REQUIREMENT
MCL for systems collecting at least
40 samples per month; no more
than five percent are total coliform
positive
MCL for systems collecting fewer
than 40 samples per month; no
more than one sample is total
coliform positive
Violation for fecal coliform or E.
Coli positive samples
Monthly determination of
compliance with total coliform
MCL
BAT for compliance with the total
coliform MCL; protection of wells
BAT for compliance with the total
coliform MCL; maintenance of a
residual disinfectant
BAT for compliance with the total
coliform MCL; maintenance of
distribution system
BAT for compliance with the total
coliform MCL; filtration and/or
disinfection of surface water
BAT for compliance with the total
coliform MCL; development of a
wellhead protection program
VARIANCES AND
EXEMPTIONS
Variances and exemptions from the
MCLs are not permitted
FEDERAL
CITE
141.63(a)(l)
141.63(a)(2)
141.63(b)
141.63(c)
141.63(d)(l)
141.63(d)(2)
141.63(d)(3)
141.63(d)(4)
141.63(c)(5)
142.63
STATE AUTHORITY
STATUTE/REGULATION
.
-
IF DIFFERENT FROM
FEDERAL
REQUIREMENT, NOTE
DIFFERENCE HERE &
EXPLAIN WHY "NO
LESS STRINGENT" ON
SEPARATE SHEET
•-
II-6
DRAFT
-------
WSG58
APPENDIX C
MODEL ATTORNEY GENERAL'S
STATEMENT
II-7
-------
WSG58
MODEL ATTORNEY GENERAL'S STATEMENT
I hereby certify, pursuant to my authority as [ (1\ J and in accordance with the
Safe Drinking Water Act as amended, and f (2) 1. that in my opinion the laws
of the state [Commonwealth] of f (3) 1 [or tribal ordinances of
F (4) 1 to carry out the program set forth in the "Program Description11
submitted by the [ (5) ] have been duly adopted and are enforceable, the
specific authorities are contained in statutes or regulations that are lawfully adopted at the
time this Statement is signed and that wfll be/were fully effective by f . (6) . 1
Seal of Office
Signature
Name (Type or Print)
Title
Date
(1) Attorney General or attorney for the primacy agency if it has independent legal
counsel to enforce the regulations
(2) 40 CFR 142.11(a)(6)(i) for initial primacy requests or 142.12(c)(l)(iii) for final
. requests for approval of program revisions
(3) Name of state or commonwealth
.(4) Name of tribe
(5) Name of primacy agency
(6) Effective date of Statute or regulation . '
II-8
-------
WSG58
APPENDIX D
PUBLIC NOTICE
II-9
-------
WSG58
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 142
PUBLIC WATER SUPPLY SUPERVISION PROGRAM REVISION FOR THE STAT OF SOUTH
CAROLINA
AGENCY: ENVIRONMENTAL PROTECTION AGENCY
ACTION: NOTICE
SUMMARY: Notice is hereby given that the State of South Carolina is revising its approved State
Public Water Supply Supervision Primacy Program. South Carolina has adopted (1) drinking water
regulations for eight volatile organic chemicals that correspond to the National Primary Drinking
Water Regulations for eight volatile organic chemicals promulgated by EPA on July 8,1987 (52 FR
25690) and (2) public notice regulations that correspond to the revised EPA public notice
requirements promulgated on October 28,1987 (52 FR 41534). EPA has determined that these two
sets of State program revisions are no less stringent than the corresponding federal regulations.
Therefore, EPA has tentatively decided to approve these State program revisions.
All interested parties may request a public hearing. A request for a public hearing must be
submitted (within 30 days after publication in the FEDERAL REGISTERS to the Regional
Administrator at the address shown below. Frivolous or insubstantial requests for hearing may be
denied by the Regional Administrator. However, if a substantial request for a public hearing is made
(within thirty (30) days after publication in the FEDERAL REGISTER! a public hearing will be
held. If no timely and appropriate request for a hearing is received and the Regional Administrator
does not elect to hold a hearing on his own motion, this determination shall become final and
effective (thirty (30) days after publication in the FEDERAL REGISTER).
Any request for a public hearing shall include the following (1) The name, address, and telephone
number of the individual organization, or other entity requesting a hearing. (2) A brief statement of
the requesting person's interest in the Regional Administrator's determination and or information
that the requesting person intends to submit at such a hearing. (3) The signature of the individual
making the requests, or if the request is made on behalf of an organization or other entity, the
signature of a responsible official of the organization or other entity.
ADDRESSES: All documents relating to this determination are available for inspection between
the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, at the following offices:
Office of Environmental Quality Control Department of Health and Environmental Control,
2600 Bull Street, Columbia, South Carolina 29201; and Regional Administrator,
Environmental Protection Agency, Region tV, 345 Courtland Street, N.E., Atlanta, Georgia
31065.
11-10
-------
WSG58
FOR FURTHER INFORMATION CONTACT: Carla E. Pierce, EPA, Region IV Drinking
Water Section at the Atlanta address given above telephone 404/324-2913, (FTS) 257-2913.
(Sec. 1413 of the Safe Drinking Water Act, as amended, (1086), and 40 CFR 142.10 of the National
Primary Drinking Water Regulations)
Dated:
Grover C. Tidwell
Regional Administrator
EPA, Region IV
H-ll
-------
WSG58
IlilliillPiff^B^MPaWi?
Title
ICR Sampling Manual
DBP/ICR Analytical Methods Manual
ICR Manual for Bench- and Pilot-Scale
Treatment Studies
ICR Microbial Laboratory Manual
ICR Reference Manual: Understanding
the ICR
Reprints of EPA Methods for Chemical
Analyses Under the Information
Collection Rule
ICR Water Utility Database System
Users' Guide (manual and 6 disks)
Release 1.1 (instructions and 3 disks)
ICR Laboratory Quality Control (QC)
Users' Guide (manual and 5 disks)
Information Collection Requirements
Rule - Protozoa and Enteric Virus
Sample Collection Procedures (pocket
guide)
ICR Treatment Studies Data Collection
Spreadsheets User's Guide (manual and
4 disks)
EPA Publication
Number
EPA 814-B-96-001
EPA 814-B-96-002
EPA 814-B-96-003
EPA600-R-95-178
EPA 814-B-96-004
,<
fi|^^i^^^^
^j^^^^BBBBBB89B8ff9
ySSfiHISffKS^SSS^SiiS^
EPA814-B-96-004
EPA 814-B-96-004A
EPA814-B-95-005
EPA 814-B-95-001
EPA814-B-97-002
NTIS Ordering
Number
PB96- 157508
PB96-157516
PB96- 157524
PB96-1 57557
PB96- 127062
PB96-1 57532
PB96-157219
(manual)
PB96-501671
(both)
PB97-500490
PB96- 157227
(manual)
PB97-501241
(both)
To order, please
phone Jim
Walasek, EPA,
513-569-7919
To be
determined
^^^^^^^^H^Bal
Publication
Date
April 1996
April 1996
April 1996
April 1996
April 1996
April 1996
Sept 1996
Nov 1996
June 1995
April 1997
11-12
-------
WSG 59 is outdated and has been deleted.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG60
Date Signed: July 23,1990
SUBJECT: Delegations of Authority for the Public Water System Supervision
Program
FROM: Raymond Enyeart, Chief (signed by Raymond Enyeart)
State Programs Management Section
TO: Holders of the PWSS Policy Directives Manual
Attached is the complete set of the Delegations of Authority currently in effect for the
Public Water System Supervision Program. Also attached is a current index of these delegations.
i.
If you have any questions about the delegations, please give me a call on
260-5551.
*Note: Please see the following website for an updated list of delegations for the PWSS
program: http://intranet.epa.gov/rmpolicy/ads/dm/index9.htm.
-------
WSG60
DELEGATIONS
FOR
PUBLIC WATER SYSTEM SUPERVISION PROGRAM
CHAPTER 9
APRIL 3,1989
DELJ SUBJECT
9-1 Certification of Potable Water Supplies
9-3 Certification of Laboratories and Responsible
State Officials
9- 4 . Determination of State Primary Enforcement
Responsibility: Public Water Systems
9- 5 Conduct Annual Review & Determine Compliance
or Non-Compliance with the Requirements for
Primary Enforcement Responsibility
9- 6 Reports by States
9- 7A Finding & Notification of Noncompliance:
Part B
9-8 Review & Issuance of Variances
9- 9 Receipt & Issuance of Exemptions
9-10 Making Available Information & Agency
Facilities & Providing Training Assistance
9-11" To Issue Public Water System Supervision
Grants
9-12 Inspections and Information Gathering
9-14 Monitoring of Consecutive Public Water Systems
DATE
OF LAST
UPDATE
7/25/84
7/25/84
SDWA
SECTION
PHSA 361
1412
7/25/84
7/25/84
1413
1413
7/25/84
1 1/6/86
7/25/84
7/25/84
7/25/84
7/25/84
7/25/84
7/25/84
1413
1414
1415 .
1416
1442
1443
1445
-------
WSG60
-2-
DEL#
9-15
9-16A
9-16B
9-16C
9-16D
9-17
9-31
9-32 '
9-33A
9-33B.
9-33C
9-36
9-38
SUBJECT
Safe Drinking Water Occupational Training
Assistance
Civil Judicial Enforcement Actions
Criminal Enforcement Actions
A
Settlement or Concurrence in Settlement
of Civil Judicial Enforcement Actions
Emergency Temporary Restraining Orders
Emergency Administrative Powers
Authority to Allot & Reallot Grant Funds for
the Public Water System Supervision Program
Administrative Enforcement Authority Under
Part B: Proposed & final Orders & Agency
Representation in Hearings
Administrative Penalty Under Part B:
Penalty Assessments, Issuing Complaints,
& Negotiating & Signing Consent Agreements
Administrative Penalty Under Part B: Agency
Representation in the Hearings, Negotiating
and Signing of Consent Agreements & Appeals
Appeals of Part B: Administrative Penalty
Orders
Determining that a State is not Enforcing
the Prohibition on Use of Lead Pipes,
Solder & Flux; & Withholding of Federal
Funds
Treatment of Indian Tribes as States: Public
Water Systems and Underground Injection
Control
DATE
OF LAST
UPDATE
7/25/84
3/27/84
11/3/86
7/25/84
3/31/83
7/25/84
7/25/84
11/3/86
11/3/86
11/3/86
11/3/86
11/3/86
SDWA
SECTION
1442
1450
1450
1450
1431
1450\
1431
1443
1414
1414
1414
1414
1417
4/3/89
1451
-------
WSG60
Date of last update: 07/25/84
SDWA Section: PHSA361
SAFE DRINKING WATER ACT
9-1. Certification of Potable Water Supplies
1. AUTHORITY. To make .certifications with respect to potable water supplies that meet
the Drinking Water Standards, pursuant to the Public Health Service Act, Section 361, as
amended by the Safe Drinking Water Act.
2. TO WHOM DELEGATED. Regional Administrators.
3. ; REDELEGATION AUTHORITY. This authority may be redelegated.
4. ADDITIONAL REFERENCES. 42ŁERPart72.
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Date of Last Update: 07/25/84
SDWA Section: 1412
SAFE DRINKING WATER ACT
9-3. Certification of Laboratories and Responsible State Officials
1. AUTHORITY. To certify laboratories conducting analytical measurements of drinking
water contaminants and to certify the officials of the State responsible for the State's
certification program in accordance with Section .1412 of the Safe Drinking Water Act.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS.
a. The Regional Administrators or their designees are required to be certified by the
Assistant Administrator for Research and Development prior to exercising this
authority.
b. The authority to prescribe the requirements for a national quality assurance
program for certification of laboratories conducting analytical measurements of
drinking water contaminants is reserved to the Administrator.
4. REDELEGATIQN AUTHORITY. This authority may be redelegated to the Division
Director level.
5. ADDITIONAL REFERENCES. 40CFRPart 142.10(b)(3-4).
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Date of Last Update: 07/25/84
SDWA Section: 1413
SAFE DRINKING WATER ACT
9-4. Determination of State Primary Enforcement Responsibility:
Public Water Systems
1. AUTHORITY. To determine whether a State has primary enforcement responsibility for
public water systems in accordance with Section 1413 of the Safe Drinking Water Act
(SDWA) and 40 CFR Part 142.10, and to notify a State and provide opportunity for
public hearings on such determinations in accordance with Section 1413 of SDWA.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS.
a. Regional Administrators are required to obtain concurrence from the Assistant
Administrators for Water and Enforcement and Compliance Monitoring, and the
General Counsel, or their designees, prior to making a final determination.
b. The Office of Water, the Office of General Counsel, and the Office of
Enforcement and Compliance Monitoring may waive the concurrence limitation
on a case-by-case basis. The Regional Administrators will be responsible for
maintaining a record of any waiver of this limitation.
c. The authority to prescribe the manner in which a State may apply for a
determination, the manner in which the determination is made, and the period for
which the determination is effective, as set forth in Section 1413(b)(l) of SDWA,
is reserved to the Administrator.
d. The authority to promptly notify the chief executive officer of each State under
Section 1413(b)(l) of SDWA is reserved to the Administrator.
e. Regional Administrators shall notify the Assistant Administrator for Water of
determinations and public hearings.
4. REDELEGATION AUTHORITY. This authority may not be redelegated.
5. ADDITIONAL REFERENCES. 40 ŁER Parts 142.11,142.12,142.13.
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WSG60
Date of Last Update: 07/25/84
SDWA Section: 1413
SAFE DRINKING WATER ACT
9-5. Conduct Annual Review and Determine
Compliance/Non-Compliance with the
Requirements for Primary Enforcement Responsibility
1, AUTHORITY.
a. To annually review, for each State determined to have primary enforcement
responsibility, the continued compliance of the State with the requirements set
. " forth in 40 ŁŁR 142.10.
b. To notify the State that it no longer meets the requirements set forth in 40 CFR
142.10, if that is the determination.
c. To conduct public hearings on such determinations and to make the final
determination after any such public hearings in accordance with Section 1413 of
the Safe Drinking Water Act.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS.
a. When the Regional Administrator's annual review reveals a change in the State's
statute, regulation, or enforcement authorities, the Regional Administrator is
required to obtain concurrence from the Assistant Administrators for Water and
Enforcement and Compliance Monitoring, and the General Counsel, or their
designees, prior to any determination of continued compliance/non-compliance
with the requirements of 40 CFR 142.10.
b. The Office of Water, the Office of General Counsel, and the Office of
Enforcement and Compliance Monitoring may waive this concurrence limitation
on a case-by-case basis. The Regional Administrator will be responsible for
maintaining a record of any waiver of this limitation.
c. Regional Administrators are required to notify the Office of Water prior to any
determination that a State no longer meets the requirements of 40 CFR 142.10.
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d. Regional Administrators shall submit a report to the Office of Water whenever
he/she determines that a State no longer meets the requirements of 40 CFR
142.10. ' - .
SAFE DRINKING WATER ACT
9-5. Conduct Annual Review and Determine
Compliance/Non-Compliance with the
Requirements for Primary Enforcement Responsibility
(Cont'd)
4. REDELEGATION AUTHORITY. This authority may not be redelegated.
5. ADDITIONAL REFERENCES. 40 CFR Parts 142.12 and 142.13.
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WSG60
Date of Last Update: 07/25/84
SDWA Section: 1413
SAFE DRINKING WATER ACT
9-6. Reports bv States
1. AUTHORITY. To receive reports by States with primary enforcement responsibility
pursuant to 40 CFR Part 142.15 in accordance with Section 1413 of the Safe Drinking
Water Act.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS. Regional Administrators are to forward a copy of their reports to the
Assistant Administrator for Water.
4. REDELEGATION AUTHORITY. This authority maybe redelegated to the Division
Director level.
5. ADDITIONAL REFERENCES. 40 CFR Part 142.15.
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WSG60
Date of Last Update: 11/06/86
SDWA Section: 1414
SAFE DRINKING WATER ACT
9-7-A. Finding and Notification of Noncompliance - Part B
1. AUTHORITY. To perform the EPA functions relating to enforcement and technical
assistance pursuant to the safe Drinking Water Act, Part B, in regard to:
A. finding that a public water system does not comply with applicable regulations or
other requirements;
b. notifying the primacy State, public water system, and the public of such a finding;
c. finding that the primacy State did not commence an appropriate enforcement
action;
d. providing notice, where appropriate, to the primacy State, pubic water system,
persons served by it, and the public of public hearings; and
e. providing, where appropriate, advice and technical assistance to the primacy State
and public water system; and, following public hearings conducted pursuant to
Section 1414(f) of the Safe Drinking Water Act, issuing recommendations and
notifying the State, public water system, and the public of such recommendations.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS. The delegatees of the Regional Administrators must consult with
Regional Counsel before exercising authorities l.a, b and c, and before issuing
recommendations under authority 1 .e.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES.
a. Section 1414 of the SDWA.
b. Section 1445 of the SDWA.
c. 40 ŁFR Parts 141 and 142.
d. Guidance on PWS Administrative Order Procedures.
10
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Date.of last Update: 07/25/84
SDWA Section: 1415
SAFE DRINKING WATER ACT
9-8.. Review and Issuance of Variances
1. AUTHORITY. To issue variances in those States which do not have primary
enforcement responsibility and to review State issued variances, pursuant to Section 1415
of the Safe Drinking Water Act.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS.
a. The authority to define generally available technology for purposes of granting
variances from any treatment technology is reserved to the Administrator.
b. The Regional Administrators are required to notify the Assistant Administrator
for Water of all variances issued.
c. The Regional Administrators are required to notify the Assistant Administrator
for Water prior to prescribing monitoring and other requirements pursuant to
Section 1415(a)(l)(B).
d. Notification by the State of a granting of a variance pursuant to Section
1415(a)(l)(C) will be received by the Regional Administrator who is responsible
for communicating such information to the Assistant Administrator for Water.
4. REDELEGATION AUTHORITY. This authority may not be redelegated.
5. ADDITIONAL REFERENCES. 40 CFR Parts 142.22,142.23, 142.24, and 142.40
through 142.46.
11
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WSG 60
Date of Last Update: 07/25/84
SDWA Section: 1416
SAFE DRINKING WATER ACT
9-9. Receipt and Issuance of Exemptions
1. AUTHORITY. To receive requests for exemptions and to issue exemptions for any
public water system within a State that does not have primary enforcement responsibility
and to review State issued exemptions pursuant to Section 1416 of the Safe Drinking
; Water Act.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS. The Regional Administrators are required to notify the Assistant
Administrator for Water of exemptions issued and schedules approved.
4. REDELEGATION AUTHORITY. This authority may not be redelegated.
5. ADDITIONAL REFERENCES. 40 CFR Parts 142.22,142.23,142.24, and 142.50
through 142.55.
12
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WSG60
Date of Last Update: 07/25/84
SDWA Section: 1442
SAFE DRINKING WATER ACT
9-10. Making Available Information and Agency Facilities and
Providinc Traininc Assistance
1. AUTHORITY. To perform the EPA functions and responsibilities relative to collecting
and making available information; making available Agency facilities; and approving
grants or cooperative agreements for training projects and for the development and
expansion of programs of States and municipalities pursuant to Sections 1442(b)(l),
1442(b)(2), 1442(b)(3), and 1442(d)(2) of the Safe Drinking Water Act.
2. TO WHOM DELEGATED.
a. Assistant Administrator for Water;
b. Regional Administrators; and
c. Through the Assistant Administrator for External affairs to the Director, Office of
Public Affairs.
3. LIMITATIONS.
a. Research activities are not included in this delegation.
b. The authority delegated to the Director, Office of Public Affairs is limited to
awarding public awareness assistance under Sections 1442(b)(l) and (b)(3).
c. The authority delegated to the Regional Administrators does not include Section
1442(d)(2).
4. REDELEGATIQN AUTHORITY. This authority may be redelegated to the Division
Director level.
13
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WSG60
Date of Last Update: 07/25/84
SDWA Section: 1443
SAFE DRINKING WATER ACT
9-11. To Issue Public Water System Supervision Grants
1. AUTHORITY. To approve grants to States to carry out public water system supervision
programs under Section 1443(a) of the Safe Drinking Water Act.
2. TO WHOM DELEGATED. Regional Administrators.
3. REDELEGATION AUTHORITY. The authority may be redelegated to the Division
Director level.
4. ADDITIONAL REFERENCES. 40 ŁER Part 30; ŁER Part 35, Subpart A; 40 ŁER Part
142.
14
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WSG60
Date of Last Update: 07/25/84
SDWA Section: 1445
SAFE DRINKING WATER ACT
9-12. Inspections and Information Gathering
1. AUTHORITY.
a. To perform the duties and responsibilities relative to reviewing records and
conducting inspections under the Safe Drinking Water Act (SDWA).
b. To obtain and execute warrants for the purpose of performing an inspection or
conducting information gathering pursuant to SDWA.
c. To carry out or require the carrying out of any other inspection and information
gathering activities authorized by SDWA.
d. To designate representatives of the Administrator to perform the functions
specified in paragraphs 1.a-I.e.
2. TO WHOM DELEGATED. The Assistant Administrator for Water, Assistant
Administrator for Enforcement and Compliance Monitoring, and Regional
Administrators.
3. LIMITATIONS.
a. The Assistant Administrator for Water and the Regional Administrators must
consult with the Assistant Administrator for Enforcement and Compliance
Monitoring or his designee prior to obtaining warrants.
b. The Assistant Administrator for Enforcement and Compliance Monitoring and the
Assistant Administrator for Water must notify the appropriate Regional
Administrator prior to exercising any of the authorities specified in paragraphs l.a
- I.e.
c. The Assistant Administrator for Enforcement and Compliance Monitoring may
waive the consultation requirement by memorandum.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
15
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SAFE DRINKING WATER ACT
9-12. Inspections and Information Gathering f Cont'd.^
5. ADDITIONAL REFERENCES.
a. Section 1445 of SDWA.
b. Once the Assistant Administrator for Water issues guidance for the use of
contractor inspectors, all such inspectors should only be used pursuant to that
guidance.
16
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WSG60
Date of Last Update: 07/25/84
SDWA Section:
SAFE DRINKING WATER ACT
9-14. Monitoring of Consecutive Public Water Systems
1. AUTHORITY. To perform the duties and responsibilities relative to the review of and
granting concurrence to any schedules set by a State in connection with modification of
the monitoring requirements relating to consecutive public water systems.
2. TO WHOM DELEGATED. Regional Administrators.
3. REDELEGATION AUTHORITY. This authority may be redelegated to the Division
Director level.
4. ADDITIONAL REFERENCES: 40 CFRPart 141.29.
17
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WSG60
Date of Last Update: 07/25/84
SDWA Section: 1442
SAFE DRINKING WATER ACT
.9-15. Safe Drinking Water Occupational Training Assistance
1. AUTHORITY. To approve grants or cooperative agreements to any public agency,
educational institution and any other organizations for training projects authorized by
Sections 1442(b)(3)(A), 1442(b)(3)(B) and 1442(d)(l) of the Safe Drinking Water Act, as
amended.
2. TO WHOM DELEGATED.
a. The Assistant Administrator for Water;
b. The Assistant Administrator for Research and Development; and
c. Regional Administrators.
3. LIMITATIONS. The authority delegated to the Assistant Administrator for Research and
Development is limited to multi-disciplinary training assistance initiated and funded by
ORD or training assistance initiated and funded by an office other than the primary holder
of training grant authority.
4. REDELEGATION AUTHORITY. This authority may be redelegated to the Division
Director level.
18
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WSG60
Date of Last Update: 03/27/84
SDWA Section: 1450
SAFE DRINKING WATER ACT
9-16-A. Civil Judicial Enforcement Actions
1. AUTHORITY. To cause civil judicial actions to be commenced or to intervene in suits
commenced pursuant to the Safe Drinking Water Act (SDWA); to request the Attorney
General to appear and represent the Agency in any civil enforcement actions instituted
under SDWA; to determine that the Attorney General has failed or refused to appear and
represent the Agency in any SDWA civil enforcement action; to appear and represent the
Agency in any SDWA action where the Attorney General has refused or failed to appear
and represent the Agency; to request the Attorney general to initiate an appeal and
represent the Agency in such an appeal; and to initiate an appeal and represent the
Agency when the Attorney General fails to do so.
2. TO WHOM DELEGATED. Assistant Administrator for Enforcement and Compliance
Monitoring, General Counsel and Regional Administrators.
3. LIMITATIONS.
a. The Regional Administrators may exercise this authority only in regard to
commencing civil actions under SDWA, intervening in civil actions commenced
under SDWA, requesting the Attorney General to appear and represent the
Agency in civil actions under SDWA and, where appropriate, appearing and
representing the Agency in any civil actions under SDWA exclusive of appeals.
The Regional Administrators may designate only Regional Counsel attorneys to
represent the Agency.
b. The Regional Administrators may exercise this authority only in cases specified in
agreements between authorized representatives of the Agency and the Department
of Justice.
c. The Assistant Administrator for Enforcement and Compliance Monitorihg must
notify the Assistant Administrator for Water and the appropriate Regional
Administrator when he or she refers to a case to the Department of Justice and
when he or she formally initiates an appeal.
d. The General Counsel may only exercise this authority in regard to appeals.
19
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SAFE DRINKING WATER ACT
9-16-A. Civil Judicial Enforcement Actions, fcont'd.')
e. Any exercise of the appeal authority will be done jointly by the General Counsel
and the Assistant Administrator for Enforcement and Compliance Monitoring.
f. The Regional Administrators must notify the Assistant Administrator for Water
and the Assistant Administrator for Enforcement and Compliance Monitoring
when they refer cases to the Department of Justice.
4. REDELEGATIQN AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES.
a. Memorandum of Understanding between the Agency and the Department of
Justice, June 1977; Direct referral agreement memorialized in letter of September
29,1983, from Alvin L. Aim, Deputy Administrator, to F. Henry Habicht,
Assistant Attorney General, regarding direct referrals; Sections 1414,1423,1431
and!450(f)ofSDWA.
b. For referrals of requests for emergency SDWA Temporary Restraining Orders,
see chapter 9 delegation entitled "Emergency TRO's."
20
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WSG60
Date of Last Update: 11/03/86
SDWA Section: 1450
SAFE DRINKING WATER ACT
9-16-B. Criminal Enforcement Actions
1. AUTHORITY. To cause criminal enforcement actions under the Safe Drinking Water
Act (SDWA) to be referred to the Department of Justice for assistance in field
investigation, for initiation of a grand jury investigation or for prosecution under the
SDWA.
2. TO WHOM DELEGATED. Assistant Administrator for Enforcement and Compliance
Monitoring.
3. REDELEGATION AUTHORITY. These authorities may be redelegated to the Associate
Enforcement Counsel level.
- 4. ADDITIONAL REFERENCES.
a. Sections 1423(b) and 1424(c) of SDWA/
b. Section 1441(e) of SDWA.
c. Section 1432(a) and (b) of SDWA.
21
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WSG60
Date of Last Update: 07/25/84
SDWA Section: 1450
SAFE DRINKING WATER ACT
9-16-C. Settlement or Concurrence in Settlement
Of Civil Judicial Enforcement Actions
1. AUTHORITY. To settle or exercise the Agency's concurrence in the settlement of civil
judicial enforcement actions under the Safe Drinking Water Act (SDWA); to amend a
consent decree pursuant to a civil judicial enforcement action under SDWA; and to
request the Attorney General to amend an enforcement consent decree entered under
SDWA.
2. TO WHOM DELEGATED. Assistant Administrator for Enforcement and Compliance
Monitoring. . ,
3. LIMITATIONS. The Assistant Administrator for Enforcement and Compliance
Monitoring must obtain the concurrence of the Agency official who initiated the case
(that is, either the Assistant Administrator for Water or designee or the appropriate
Regional Administrator or designee) before exercising this authority.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
22
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WSG60
Date of Last Update: 03/31/83
SDWA Section: 1431/1450
SAFE DRINKING WATER ACT
9-16-D. Emergency TRO's
1. AUTHORITY. To refer requests for emergency Temporary Restraining Orders under the
Safe Drinking Water Act (SDWA) to the Department of Justice and to the appropriate
United States Attorney.
2. TO WHOM DELEGATED. Regional Administrators and the Associate Administrator
for Legal and Enforcement Counsel or his Designee when exercising this authority.
3. LIMITATIONS.
a. The Regional Administrators must notify the Associate Administrator for Legal
and Enforcement Counsel.
b. The Associate Administrator for Legal and Enforcement Counsel must notify the
appropriate Regional Administrator or his designee when exercising this
authority.
4. REDELEGATION AUTHORITY. This authority may not be redelegated.
5. ADDITIONAL REFERENCES.
a. Memorandum of Understanding between the Agency and the Department of
Justice, June 1977; Sections 1431 and 1450(f) of SDWA.
b. For referral of other civil actions under SDWA, see Delegation 9-16-A.
c. For issuance of emergency administrative orders regarding public water systems,
see Delegation 9-17.
(New Delegation)
23
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WSG 60
Date of Last Update: 07/25/84
SDWA Section: 1431
SAFE DRINKING WATER ACT
9-17. Emergency Administrative Powers
1. AUTHORITY. To receive information, take action, determine the practicality of
consultation, consult with States and local authorities, and issue emergency
1 administrative orders pursuant to the Safe Drinking Water Act (SDWA).
2. TO WHOM DELEGATED. Regional Administrators and Assistant Administrator for
Water.
i
3. LIMITATIONS.
a. The Assistant Administrator for Water may exercise these authorities in multi-
Regional cases or cases of national significance. In addition, the Assistant
Administrator for Water must consult in advance with the Assistant Administrator
for Enforcement and Compliance Monitoring or his designee and must notify any
affected Regional Administrators or their designees when exercising the authority
to issue orders.
b. The Assistant Administrator for Enforcement and Compliance Monitoring and the
Assistant Administrator for Water may waive their respective consultation
requirements by memorandum.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES. Section 1431 of SDWA.
24
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WSG60
Date of Last Update: 07/25/84
SDWA Section: 1443
SAFE DRINKING WATER ACT
9-31. Authority to Allot and Reallot Grant Funds for the Public
Water System Supervision Program
1. AUTHORITY. To allot among the States the Public Water System Supervision Program
grant funds appropriated by Congress each year, as provided for in Section 1443(a)(4) of
the Safe Drinking Water Act (SDWA); and to reallot any unobligated funds to eligible
States.
2. TO WHOM DELEGATED. The Assistant Administrator for Water.
3. REDELEGATION AUTHORITY. This authority may be redelegated to the Director,
Office of Drinking Water.
4. ADDITIONAL REFERENCES. SDWA, Section 1413; 40 CFR Part 30; 40 CFR 35,
Subpart A; and 40 CFR Part 142.
25
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WSG60
Date of Last Update: 11/03/86
SDWA Section: 1414
SAFE DRINKING WATER ACT
9-32. Administrative Enforcement Authority Under Part B: Proposed and
Final Orders and Agency Representation in Hearings
1. AUTHORITY. Pursuant to the Safe Drinking Water Act (SDWA), Part B: to issue
proposed orders requiring compliance; to provide the primacy State an opportunity to
confer; to conduct and represent the Agency in a pubic hearing; to amend or withdraw
proposed orders requiring compliance; and to issue final orders requiring compliance.
2. TO WHOM DELEGATED. Regional Administrators and the Assistant Administrator for
Water.
3. LIMITATIONS.
a. The Assistant Administrator for Water may exercise the above authorities in
multi-regional cases and in cases of national significance.
b. The Assistant Administrator for Water must consult with the Office of
Enforcement and Compliance Monitoring before exercising any of the above
authorities.
ft
c. The Regional Administrators may exercise the above authorities only for those
cases initiated by the Regions.
d. the delegatees of the Regional Administrators must consult with Regional
Counsel before exercising the above authorities.
4. REDELEGATION AUTHORITY. These authorities may be redelegated.
5. ADDITIONAL REFERENCES.
a. See the Chapter 9 delegations entitled:
(1) "Civil Judicial Enforcement Actions."
(2) "Emergency Administrative Powers."
b. Section 1414(a)(l)(A) and (B), (f), (g)(l) and (g)(2) of the SDWA.
26
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WSG60
c. Section 1445 of the SDWA.
SAFE DRINKING WATER ACT
9-32. Administrative Enforcement Authority Under Part B: Proposed and
Final Orders and Agency Representation in Hearings fCont'cD
d. Guidance on Headquarters involvement in the Issuances by Regions of the first
Proposed and Final Administrative Orders.
e. Guidance on PWS Administrative Order Procedures.
27
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WSG60
Date of Last Update: 11/03/86
SDWA Section: 1414
SAFE DRINKING WATER ACT
9-33-A. Administrative Penalty Under Part B: Penalty Assessments, Issuing
Complaints, and Negotiating and Signing Consent Agreements
1. AUTHORITY. Pursuant to the Safe Drinking Water Act (SDWA): to assess a penalty
against any person in violation of any administrative order issued under Part B of the
SDWA; to issue, amend or withdraw complaints; and to negotiate and sign consent
agreements between the Agency and respondents.
2. TO WHOM DELEGATED. Regional Administrators and the Assistant Administrator for
Water.
3. LIMITATIONS.
a. These authorities may only be exercised prior to the alleged violator's filing an
answer or failure to file a timely answer to a complaint.
b. The Assistant Administrator for Water may exercise the above authorities in
multi-regional cases and in cases of national significance.
c. The Assistant Administrator for Water must consult with the Assistant
Administrator for Enforcement and Compliance Monitoring or designee before
exercising any of the above authorities.
d. The Regional Administrators may exercise the above authorities only for those
cases initiated by the Regions.
e. The delegatees of the Regional Administrators must consult with Regional
Counsel before exercising the above authorities.
f. The Agency official authorized to sign the complaint should sign the consent
agreement.
4. REDELEGATION AUTHORITY. These authorities may be redelegated to the Division
Director level. The authority to negotiate settlements may be redelegated further.
5. ADDITIONAL REFERENCES.
a. Section 1414(g)(l) and (3) of the SDWA.
b. Section 1445 of the SDWA.
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SAFE DRINKING WATER ACT
9-33-A. Administrative Penalty Under Part B: Penalty Assessments. Issuing
Complaints, and Negotiating and Signing Consent Agreements, (cont'd.)
c. 40CŁRPart22.
d. Guidance on Procedures for Assessing Civil Penalties in an Administrative Order
Pursuant to Section 1414(g)(3)(B) of the SDWA.
e. Guidance on Headquarters Involvement in the Issuances by Regions of the First
Proposed and Final Administrative Orders.
f. Chapter 9 Delegation entitled "Administrative Penalty Under Part B: Agency
Representation in the Hearings, Negotiating and Signing of Consent Agreements
and Appeals" for authorities once the alleged violator files or fails to file an
answer to the complaint.
29
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WSG60
Date of Last Update: 11 /03/86
SDWA Section: 1414
SAFE DRINKING WATER ACT
9-33-B. Administrative Penalty Under Part B: Agency Representation in the
Hearings. Negotiating and Signing of Consent Agreements and Appeals
1. AUTHORITY.
a. To represent EPA in civil penalty adjudications conducted under the penalty
section of Part B of the Safe Drinking Water Act (SDWA) and 5 U.S.C. Section
554;
b. To negotiate consent agreements between the Agency and respondents resulting
form such enforcement actions;
c. To sign consent agreements;
d. To initiate appeals from administrative determinations; and
e. To represent the Agency in such appeals.^
2. TO WHOM DELEGATED. Regional Administrators and the Assistant Administrator for
Enforcement and Compliance Monitoring.
3. LIMITATIONS.
a. These authorities may only be exercised after the alleged violator either files an
answer or fails to file a timely answer.
b. The Assistant Administrator for Enforcement and Compliance Monitoring may
exercise the above authorities for those cases which were initiated by
Headquarters.
c. The Regional Administrators may exercise the above authorities only for those
cases which were initiated by the Regions.
d. The Assistant Administrator for Enforcement and Compliance Monitoring must
notify the appropriate Regional Administrator or designee before exercising the
above authorities.
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WSG60
SAFE DRINKING WATER ACT
9-33-B. Administrative Penalty Under Part B: Agency Representation in the
Hearings. Negotiating and Signing of Consent Agreements and Appeals,.
(confd.)
e. The Assistant Administrator for Enforcement and Compliance Monitoring must
notify the Assistant Administrator for Water or designee before initiating an
appeal.
f. The Regional Administrators must obtain concurrence from the Assistant
Administrator for Enforcement and Compliance Monitoring or designee before
initiating an appeal.
g. The Regional Administrators or delegatees shall consult with the Assistant
Administrator for Enforcement and Compliance Monitoring or designee any time
they do not recommend an appeal of an adverse decision.
4. REDELEGATION AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES.
a. Section 1414(g)(l) and (3) of the SDWA-.
b. Section 1445 of the SDWA.
c. Guidance on Headquarters Involvement in the Issuances by Regions of the first
Proposed and Final Administrative Orders.
d. Guidance on Procedures for Assessing Civil Penalties hi an Administrative Order
Pursuant to Section 1414(g)(3)(B) of the SDWA.
e. 40ŁERPart22.
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WSG 60
Date of Last Update: 11/03/86
SDWA Section: 1414
SAFE DRINKING WATER ACT
9-33-C. Appeals of Part B Administrative Penalty Orders
1. AUTHORITY. To serve as final deciding official in all adjudicatory appeals proceedings
under Part B of the Safe Drinking Water Act.
2. TO WHOM DELEGATED. The Chief Judicial Officer.
3. LIMITATIONS. The Chief Judicial Officer and delegatees may not be employed by the
Office of Enforcement and Compliance Monitoring or by any program office directly
associated with the type of violation at issue in the involved proceeding.
4. REDELEGATION OF AUTHORITY. This authority may be redelegated in individual
proceedings to other Judicial Officers; provided, however, that decisions rendered
pursuant to redelegated authority must be with the written concurrence of the Chief
Judicial Officer. Nothing in this delegation shall preclude the Chief Judicial Officer from
referring any motion or other matter in any proceeding to the Administrator when the
Chief Judicial Officer determines referral to be appropriate.
5. ADDITIONAL REFERENCES.
a. 40ŁFRPart22.
•
b. Guidance on Headquarters Involvement in the First Issuances of Proposed and
Final Administrative Orders for Compliance.
c. See the Chapter 1 Delegation entitled "Adjudicatory Proceedings."
d. Section 1414(g)(3)(B) of the SDWA.
e. Guidance on Procedures for Assessing Civil Penalties in an Administrative Order
Pursuant to Section 1414(g)(3)(B) of the SDWA.
32
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WSG 60
Date of Last Update: 11/03/86
SDWA Section: 1417
SAFE DRINKING WATER ACT
9-36. Determining that a State is not Enforcing the Prohibition on Use
of Lead Pipes. Solder and Flux: and Withholding of Federal Funds
1. AUTHORITY. To determine that a State is not enforcing the requirements in the
prohibition on use of lead pipes, solder, and flux; and to withhold Federal funds available
to any State which fails to enforce the prohibition, and public notice requirements.
2. TO WHOM DELEGATED. Regional Administrators.
3. REDELEGATIQN AUTHORITY. This authority may not be redelegated.
4. ADDITIONAL REFERENCES. Section 1417 of the SDWA.
33
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WSG60
Date of Last Update: 04/03/89
SDWA Section: 1451
SAFE DRINKING WATER ACT
9-38. Treatment of Indian Tribes as States: Public
Water Systems and Underground Injection Control
1. AUTHORITY. To determine whether an Indian Tribe shall be treated as a State for
purposes of the Public Water System and Underground Injection Control Programs hi
accordance with Section 1451 of the Safe Drinking Water Act. A separate determination
must be made for the Public Water system and Underground Injection Control Programs.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS.
a. Regional Administrators are required to obtain concurrence from the Assistant
Administrators for Water and Enforcement and Compliance Monitoring, and the
General Counsel, or their designees, prior to making the first final determination
for treatment of a Tribe as a State for each program in the Region.
b. The Office of Water and the Office of Enforcement and Compliance Monitoring
may waive the concurrence limitation on a case-by-case basis. The Regional
Administrators will be responsible for maintaining a record of any waiver of this
limitation and sending a copy of any waiver to the Management and Organization
Division (PM 213).
c. Any subsequent final determinations in that program may be made by the
Regional Administrator with the concurrence of the Regional Counsel.
4. REDELEGATION OF AUTHORITY. The authority to approve the initial determination
may not be redelegated. The authority to approve any amendments to the initial
determination or to approve any subsequent determinations may be redelegated to the
Division Director level.
5. ADDITIONAL REFERENCES. 40 CFR Parts 142.72,142.76,142.78,145.52, 145.56,
and 146.58.
34
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WSG 61-70
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG61
Date Signed: August 6,1990
Revised: July 28,1997
Revised by: Marc Parotta
MEMORANDUM
SUBJECT: Use of Water Treatment Chemicals and Operation of
Public Water Systems During Emergencies
FROM: Michael B. Cook, Director (signed by Michael B. Cook)
Office of Drinking Water (WH-550D)
TO: Water Supply Branch Chiefs
Regions I - X
This memorandum clarifies EPA's guidance on water treatment chemicals and the
operation of public water supplies during emergencies. Specifically, this guidance addresses
emergency disinfection. Since the Public Water System Supervision Policy Directive Manual is
currently being revamped, I will postpone assigning a number to this guidance document and
will incorporate it into the revised Policy Directive Manual.
Water Treatment Chemicals
States have the authority to control (approve, prohibit, or limit) the use of water treatment
chemicals in public water supplies. We recommend (and nearly all States agree) that direct
additives used in public supplies meet the specifications of National Sanitation Foundation
(NSF) Standard 60. I further recommend that States use NSF Standard 60, in administering their
domestic water supply programs. In all cases, systems must comply with Federal laws and
regulations, including the Safe Drinking Water Act; Federal Insecticide, Fungicide, and
Rodenticide Act; and the Federal Food, Drug and Cosmetic Act.
Operation of Public Water Supplies during Emergencies
Water supply is essential, but only properly disinfected water may be consumed. In an
emergency, when the provision of adequately disinfected water is interrupted, a public water
supply should contact the State immediately for guidance. As an interim emergency measure,
while awaiting State response, we suggest that the system provide the information on emergency
disinfection in EPA Manual of Individual Water Supply Systems. Appendix C, as guidance to its
customers.
I ask that you distribute copies of this guidance (attached) to the States and other
interested parties.
Attachment
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WSG61
United States
Environmental Protection
Agency
Office of Drinking Water
EPA-S70/9-82-004
October 1982
Washington DC 20460
Water
Manual of
Individual Water
Supply Systems
Appendix C
Emergency Disinfection
When ground water is not available and surface
water must be used, avoid sources containing floating
material or water with a dark color or an odor. The
water tank from a surface source should be taken
from a point upstream from any inhabited area and
dipped, if possible, from below the surface.
When the home water supply system is
interrupted by natural or other forms of disaster,
limited amounts of water may be obtained by
draining the hot water tank or melting ice cubes.
In case of a nuclear attack, surface water should
not be used for domestic purposes unless it is first
found to be free from excessive radioactive fallout.
The usual emergency treatment procedures do not
remove such substances. Competent radiological
monitoring services as may be available in local areas
should be relied upon for this information.
There are two general methods by which small
quantities of water can be effectively disinfected.
One method is by boiling. It is the most positive
method by which water can be made bacterially safe
to drink. Another method is chemical treatment. If
applied with care, certain chemicals will make most
waters free of harmful or pathogenic organisms.
When emergency disinfection is necessary, the
physical condition of the water must be considered.
The degree of disinfection will be reduced in water
that is turbid. Turbid or colored water should be
filtered through clean cloths or allowed to settle, and
the clean water drawn off before disinfection. Water
prepared for disinfection should be stored only in
clean, tightly covered, noncorrodible containers.
METHODS OF EMERGENCY DISINFECTION
1. Boiling. Vigorous boiling for I full minute
will kill any disease-causing bacteria present in
water. The flat taste of boiled water can be improved
by pouring it back and forth from one container into
another, by allowing it to stand for a few hours, or by
adding a small pinch of salt for each quart of water
boiled.
2. Chemical Treatment. When boiling is not
practical, chemical disinfection should be used. The
two chemicals commonly used are chlorine and
iodine.
a. Chlorine
(1) Chlorine Bleach. Common household
bleach contains a chlorine compound that will
disinfect water. The procedure to be followed is
usually written on the label. When the necessary
procedure is not given, one should find the
percentage of available chlorine on the label and use
the information in the following tabulation as a
guide:
Available
chlorine1
1%
4-6%
7-10%
Drops per quart of
clear water2
10
2
1
Appr. Cone, as
available free
chlorine
Sppm
4-6 ppm
4-5 ppm
'Double amount for turbid or colored water.
The treated water should be mixed thoroughly
and allowed to stand for 30 minutes. The water
should have a slight chlorine odor; if not, repeat the
dosage and allow the water to stand for an additional
15 minutes. If the treated water has too strong a
chlorine taste, it can be made more palatable by
allowing the water to stand exposed to the air for a
few-hours or by pouring it from one clean container
to another several times.
(2) Granular Calcium Hypochlorite. Add
and dissolve one heaping teaspoon of high-test
granular calcium hypochlorite (approximately 1/4
ounce) for each 2 gallons of water. This mixture will
produce a stock chlorine solution of approximately
500 mg/e, since the calcium hypochlorite has an
available chlorine equal to 70 percent of its weight
To disinfect water, add the chlorine solution in the
ratio of one part of chlorine solution to each 100
parts of water to be treated. This is roughly equal to
adding 1 pint (16 oz.) of stock chlorine solution to
each 12.5 gallons of water to be disinfected. To
remove any objectionable chlorine odor, aerate the
water as described above.
(3) Chlorine Tablets. Chlorine tablets
containing the necessary dosage for drinking water
disinfection can be purchased in a commercially
prepared form. These tablets are available from drug
and sporting goods stores and should be used as
stated in the instructions. When instructions are not
available, use one tablet for each quart of water to be
purified.
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WSG61
b. Iodine
(1) Tincture of Iodine. Common household
iodine from the medicine chest or first aid package
may be used to disinfect water. Add five drops of 2
percent United States Pharmacopeia (U.S.P.) tincture
of iodine to each quart of clear water. For turbid
water add 10 drops and let the solution stand for at
least 30 minutes (appr. 5 ppm).
(2) Iodine Tablets. Commercially prepared
iodine tablets containing the necessary dosage for
drinking water disinfection can be purchased at drug
and sporting goods stores. They should be used as
stated in the instructions. When instructions are not
available, use one tablet for each quart of water to be
purified.
Water to be used for drinking, cooking, making
any prepared drink, or brushing the teeth should be
properly disinfected.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG62
Date Signed: August 23,1990
MEMORANDUM
SUBJECT: Tracking Compliance with Administrative Orders in the
PWSS and UIC Programs
•
FROM: Michael B. Cook, Director (signed by A. Kuzmack, Acting)
Office of Drinking Water
Office of Water
Frederick F. Stiehl (signed by Frederick F. Stiehl)
Associate Enforcement Counsel
for Water
Office of Enforcement
TO: Water Management Division Directors
Regions I - X
Regional Counsels
Regions I-X
Attached for your use is the final "Guidance on Administrative Order Tracking and
Follow-up for the PWSS and UIC Programs."
The draft guidance was sent to your staff for review in April. A summary of the Regional
comments and HQ responses is attached. If you have any questions, please direct them to
Valerie Wilson (FTS 238-2303) or Betsy Devlin ((202) 564-2245) for the PWSS program and
Peter Bahor ((202) 564-7029) for the UIC program. Thank you for your cooperation in this
effort.
Attachment
cc: Drinking Water/Groundwater Protection Branch Chiefs
PWSS and UIC Section Chiefs
ORC Water Branch Chiefs
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WSG62
GUIDANCE ON ADMINISTRATIVE ORDER TRACKING AND FOLLOW-UP
FOR THE PWSS AND UIC PROGRAMS
INTRODUCTION
This guidance is designed to supplement existing PWSS and UIC guidance on
administrative order tracking and follow up activities. The guidance is divided into three
sections. The first deals with tracking compliance and with active administrative orders; the
second concerns Regional responses to violations of administrative orders; and the third deals
with closing out administrative orders once all the requirements have been satisfied.
POLICY STATEMENT
It is the Agency's policy that compliance with the terms of administrative orders,
including collection of assessed penalties, be monitored and that appropriate administrative or
judicial action be taken for noncompliance. EPA Regions are responsible for tracking
compliance with all Federal administrative orders. As part of their oversight of State
enforcement programs, the Regions should confirm that States are monitoring compliance with
the terms of any State-issued administrative orders and are following up on any violations. Note:
The principles in this guidance could be used by the Regions as a model for State tracking
systems.
The Regional Drinking Water/Groundwater Protection Branches in the PWSS and UIC programs
are responsible for tracking compliance with all Federal administrative orders. This may be
accomplished through the receipt of reports and other deliverables from the order respondents,
through the use of inspections, or other means available to the Region. In order to determine
whether a party is in compliance with the terms of an administrative order, the staff must
compare the requirements of the order with the information gathered through the deliverables,
inspections, or other means. The staff must also determine if the deliverables submitted
adequately document compliance and meet the requirements of the order. If through its tracking
and evaluation of the deliverables, the staff determines there is a violation of the order, the
Region must then determine the appropriate response and document that decision. Once the
respondent has met the requirements of the administrative order, the order must be closed out.
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WSG 62
TRACKING COMPLIANCE WITH ADMINISTRATIVE ORDERS
Each Drinking Water/Groundwater Protection Branch must maintain a record of all
administrative orders. The records must include at least the following information for each
administrative order: name of respondent, docket number, section of the SDWA under which the
order was issued (i.e, 1414,1423, or 1431), violation(s) for which the order was issued, all
required milestones and due dates (including penalty payments and due dates for UIC penalty
orders), an indication of the date each milestone was completed, and the date the order was
closed out or terminated. For UIC penalty orders, the information must also include the penalty
originally sought and the penalty finally assessed. The case file must contain the rationale for
differences hi the penalty sought versus the amount finally assessed.
These records may be maintained in the form that best suits the Branch's needs (and any
requirements of Regional management); that is, in a manual log, on a personal computer, as part
of a Regional data base, or tied in with other reporting requirements. Moreover, the Region need
not use the same system for both PWSS and UIC orders. Nevertheless, to ensure the availability
of oversight, the case file should include where this file is maintained. (Note: The Regional UIC
programs currently report information on administrative orders to Headquarters according to HQ
guidance. This guidance is not meant to alter those reporting requirements. The Regions should
continue to report that information and can use the "Comment" fields in that system to track
compliance schedules, deliverables, due dates, etc.)
In order to effectively monitor compliance with the terms of administrative orders:
(1) Milestones/deliverables (and any revisions) must be entered for all orders. This
includes penalty payments) and due date(s) for UIC penalty orders.
(2) On a regular schedule, but not less than quarterly, all currently due (and any
overdue) milestones must be listed and made available to staff. This use as a
tickler system will allow for effective follow-up.
(3) Completion dates for milestones/deliverables must be entered into the record.
The establishment of such a tracking system for PWSS and UIC orders will greatly assist
the Regions in determining compliance with the terms of already issued orders, in overseeing
progress of systems towards ultimate compliance with the SDWA, and in providing
documentation of case histories for audits or for additional enforcement activities.
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WSG62
RESPONSES TO VIOLATIONS OF ADMINISTRATIVE ORDERS
The Drinking Water/Groundwater Protection Branch staff are responsible for determining
if a violation of an administrative order has occurred and of recording that violation in the
official case file. A violation occurs when any milestone is missed.
Once a violation has occurred and has been documented, the Regional program staff under the
supervision of management and in consultation with Office of Regional Counsel (as necessary)
must determine the appropriate response. The responses may vary depending on the facts of the
situation. In some cases, the violation does not constitute a threat to public health nor jeopardize
the respondent's lability to meet subsequent milestones or the final compliance date. In such
instances, the Region may decide that no follow-up action is required or that an informal
response may be appropriate. Other violations may be more serious; in those cases the Region
may decide that a complaint for an administrative penalty or a civil judicial action may be the
appropriate course of action. Whatever the decision, it is critical that the decision and the
Region's rationale be documented in the official case file.
A
In selecting the appropriate response to the violation of the order, the following factors or
criteria should be considered:
• Environmental Harm Caused by the Violation - What is the risk to human health
and the environment due to the continuing violation?
• Duration of the Violation — How long has the violation continued? Has it been
corrected?
• Good Faith/Bad Faith ~ Was the violation deliberate? Was the party notified that
it was in violation and then did it continue to violate? Has the party demonstrated
good faith or bad faith in its past efforts to comply? Has the party re-established
meaningful dialogue with a State agency? Is the party receiving technical
assistance from a State agency?
• Deterrence value — Will an action deter future violations either by this party or by
respondents of other orders?
• Ability to Respond - Can the party respond positively and come into compliance?
Is the party taking steps to apply for financial assistance from State agencies? Is
the party undergoing reorganization or change of ownership?
• Economic Gain — Has the party gained an economic advantage over its
competitors as a result of the violation?
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WSG62
There may be cases where the Region may decide not to respond formally to the violation
of the order. Two examples of situations where a formal response may not be needed are:
• The submission of a late report, where there has not been a past pattern of delay or
late milestones.
• A missed milestone, where the milestone is not critical to reaching full
compliance within the time specified in the order, and where the Region expects
the party to be in compliance with the next milestone.
r
The Region must document its decision and rationale in the official case file.
CLOSING OUT ADMINISTRATIVE ORDERS
Once all the requirements of the administrative order have been satisfied, the
administrative order should be closed out. The Branch staff must record the fact that all
requirements were met in the case file and delete the order from the list of active administrative
orders.
Additionally, in any case where an order has been proposed and then not issued in final,
the Region must document in the case file the reason for not pursuing the order. For example, the
party returned to compliance or the State took over the action.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG 63
Date Signed: December 19,1990
MEMORANDUM
SUBJECT: Final SNC Definition for the TCR and Proposed SNC
Definition for the SWTR
FROM: Connie Bosma, Chief (signed by Connie Bosma)
Drinking Water Branch, ODW (WH-55OE)
TO: Drinking Water/Ground Water Protection Branch Chiefs
Regions I - X
During the Drinking Water Branch Chief's Meeting, held during the week of December
3,1990, agreement was reached on the SNC definition for the Total Coliform Rule (TCR). We
could not come to a consensus on the SNC definition for the Surface Water Treatment Rule
(SWTR). However, the discussions at the meeting prompted us to propose the approach in this
memo.
Final SNC Definition for the TCR:
The definition for SNCs for the TCR is provided as Attachment 1. Implementation of this
definition will be done using a transition plan that will phase-in the new definition over two
quarters. For the first calendar quarter of 1991, (data due to FRDS June 1,1991, SNC list run
July 1,1991), two SNC lists will be generated. The first SNC list will use the current definition.
The States and Regions will be required to take timely and appropriate actions against the
systems on this list. A second SNC list will be run using the new definition to give States and the
Regions an idea of the impact that the new SNC definition will have. For the second calendar
quarter of 1991, (data due to FRDS September 1,1991, SNC list run October 1, 1991), the new
SNC definition will be used.
For the reporting periods beginning January 1991, April 1991 and July 1991, SNC
determination (using the new SNC definition) will be done using violation data from the new
TCR and the current coliform rule. For the purpose of SNC determination, violations of the
current coliform rule will translate to violations of the new TCR as follows. Monitoring and
Reporting (M&R) violations, Major and Minor, from the current rule will count as Major
Routine and Minor Routine. MCL violations of the current rule will count as Monthly MCL
violations.
For the reporting period beginning January 1991, the current SNC definition will be used
with violation data from the current coliform rule and the new TCR. For the purpose of SNC
determination, violations of the new TCR will translate to violations of the current coliform rule
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WSG63
as follows. Minor Repeat and Minor Routine M&R violations from the new TCR will count as
Minor M&R violations. Major Repeat and Major Routine M&R violations from the new TCR
will count as Major M&R violations. MCL violations under the new TCR consist of Monthly and
Acute violations. Both will count simply as MCL violations.
In discussions on the new SNC definition, questions were raised as to how to treat a PWS
which monitors at different frequencies during a one year period. Currently, if a system on
quarterly monitoring has a violation and the State then elects to put that system on monthly
monitoring, if the system incurs another violation, our policy dictates that the system becomes an
SNC. This is because we currently use the most stringent criteria (the quarterly criteria) for SNC
determination.
As of January 1,1991, we will change the above approach because we believe it does not
take into account the added protection to public health provided by an increased monitoring
frequency. Starting January 1,1991, the "current monitoring frequency" rather than the
"monitoring frequency with the most stringent SNC criteria" will be used in SNC determination.
In the above case, then, the system would be allowed 4 MCL violations because it would be
evaluated under the criteria for systems on monthly monitoring.
Proposed SNC Definition for the SWTR:
As stated earlier, during the Branch Chief's Meeting we were unable to come to a
consensus on a final SNC definition for the SWTR. (Attachment 2 is the proposed SNC
definition for the SWTR.) Disagreement centered around unfiltered systems. Specifically, the
Branch Chiefs wanted more discussion of the method(s) we will use to ensure that unfiltered
systems that are required to filter install filtration in a timely manner. In this memorandum we
propose an enforcement protocol to deal with unfiltered systems that are required to install
filtration.
We believe that the SWTR is high priority and that we should aggressively implement
and enforce its requirements. Our SNC definition should reflect this priority. Moreover, once we
identify a system as an SNC, it must be addressed in a timely and appropriate manner. Our
guidance on timely and appropriate actions states that systems identified as SNCs must be
addressed by appropriate actions within six months of becoming SNCs. Timely and appropriate
actions consist of State or Federal Administrative Orders AOs, State or Federal Civil Referrals,
criminal cases, or Bilateral Compliance Agreements (BCAs). BCAs must be signed by both
parties and must include a compliance schedule.
The proposed SWTR SNC definition states that if a PWS is unfiltered and required to
filter, and fails to install filtration by June 29,1993 or within 18 months of the State
determination that filtration is required (whichever is later) the PWS becomes a SNC. However,
if an appropriate action is in place by the deadline for the installation of filtration, the system will
be listed as an addressed SNC. Regions and States should monitor systems" progress towards
compliance with the SWTR.
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WSG 63
We believe that it is appropriate for systems of different sizes to be addressed by different
appropriate actions. For example, we do not believe it is appropriate to address a major system
with a BCA. While BCAs are appropriate actions, they are not independently enforceable.
Therefore, States and Regions should not use BCAs for systems that serve more than 10,000
persons. However, smaller systems can be addressed by any appropriate action.
Implementing the SWTR is high priority and SWTR SNCs must be addressed as soon as
possible to send a message to the States and the systems. Informing States and systems of our
enforcement priorities will enable them to better use scarce resources.
Please comment on the SNC definition for the SWTR by January 11,1991. We are
especially concerned that we receive your input on the enforcement approach we propose for
unfiltered surface water systems that are required to filter. We will develop a detailed policy on
the issues in this memorandum that will include guidance to the Regions.
Please call Clive Davies at (202) 260-1421 or Betsy Devlin at (202) 564-2245 with any
questions.
Attachments
cc: Office of Enforcement (Kathy Summerlee)
Bob Blanco
PWSS Enforcement Coordinators, Regions I - X
Wade Miller (ASDWA)
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WSG63
REVISED BREAKDOWN OF M/R VIOLATIONS - TCR
ROUTINE:
Major: A system that fails to take all (takes no samples) of the required routine samples
per compliance period.
Minor: A system that fails to take some (but not all) of the required routine samples in a
compliance period.
REPEAT:
Major:
Minor:
A system that does not conduct follow up monitoring after a total
coliform-positive sample (i.e., takes no repeat samples and/or conducts no
speciation for fecal/E. coli.
A system that fails to take some of the required repeat samples and/or a system
that fails to speciate at least one (but not all) total coliform-positive samples for
fecal/E coli).
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WSG63
Attachment 1 - TCR SNC Definition
PROPOSED SNC DEFINITION FOR THE TCR
SNCs (Tier 1):
• Systems on Monthly Monitoring:
a system that has 4 or more combined MCL or major repeat M/R
violations in any 12 consecutive months,
-or-
a system that has 6 or more combined MCL or major repeat or major
routine M/R violations in any 12 consecutive months,
-or-
a system that has 10 or more combined MCL or M/R violations (major or
minor) in any 12 consecutive month,
• Systems on Quarterly Monitoring:
a system that has 3 or more combined MCL and/or major repeat or major
routine M/R violations in any 4 consecutive quarters,
• Systems on Annual Monitoring:
a system that has 2 or more MCL and/or major repeat or major routine
M/R violations in any 2 consecutive years,
Tier 2:
• Systems on Monthly Monitoring:
a system that has 2 or 3 combined MCL or major repeat M/R violations in
any 12 consecutive months,
-or-
a system that has 4 or 5 combined MCL or major repeat or major routine
M/R violations in any 12 consecutive months,
-or-
a system that has 5 to 9 combined MCL or any M/R violations (major or
minor) in any 12 consecutive months,
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WSG63
Attachment 1 - TCR SNC Definition
• Systems on Quarterly Monitoring:
a system that has 1 or 2 combined MCL and/or major repeat or major
routine M/R violations in any 4 consecutive quarters,
• Systems on Annual Monitoring:
a system that has any violation of the TCR major repeat or major routine
M/R requirements and/or MCL,
Tier 3:
• All other MCL and/or M/R violators (for all monitoring frequencies).
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WSG 63
Draft -for Review Purposes Only
Attachment 2 - SWTR SNC Definition
PROPOSED SNC DEFINITION FOR THE SWTR
Unfiltered Systems
SNCs (Tier 1):
A system informed of the requirement to filter before Jan., 1992 that does not
install filtration by June 29,1993,
-or-
A system informed of the requirement to filter after December 1991 that does not
install filtration within 18 months of being informed that filtration is required,
-or-
A system that has 3 or more M/R violations in any 12 consecutive months,
Tier 2:
• A system that has 2 M/R violations in any 12 consecutive months, Tier 3:
• All other violators.
Filtered Systems
SNCs (Tier 1):
• A system that has 4 or more treatment technique violations in any 12 consecutive
months,
-or-
• A system that has a combination of 6 violations including treatment technique
violations and M/R violations in any 12 consecutive months,
Tier 2:
• A system that has 2 or 3 treatment technique violations in any 12 consecutive
months,
-or-
• A system that has a combination of 3,4 or 5 violations including treatment
technique violations and M/R violations in any 12 consecutive months,
Tier 3:
All other violators.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG64
Date Signed: February 25,1991
MEMORANDUM
SUBJECT: Interim Policy on the Inclusion of Pollution Prevention and Recycling Provisions
in Enforcement Settlements
FROM: James M. Strock
Assistant Administrator
TO: Regional Administrators
Assistant Administrators
General Counsel
This memorandum transmits the final interim policy on the use of pollution prevention
and recycling conditions hi Agency consent orders and decrees (see Attachment). It reflects your
extensive comments on the draft version distributed on September 25,1990, as well as the
subsequent work of the Pollution Prevention/Settlement Policy Workgroup.
This interim policy is part of the Agency's overall strategy to make pollution prevention a
major component of all Agency programs. It encourages the use of pollution prevention and
recycling conditions in enforcement settlements, either as injunctive reliefer as "supplemental
environmental projects" incidental to the correction of the violation itself. When a pollution
prevention condition is considered as a supplemental project, this interim policy should be used
in conjunction with the recently issued Policy on the Use of Supplemental Enforcement Projects
in EPA Settlements (February 12,1991).
This interim policy is effective immediately and should be used whenever a pollution
prevention condition is being considered as part of a consent order or decree. Each national
media compliance program may decide whether to develop its own more specific pollution
prevention settlement guidance or continue to use this general guidance. The Agency plans to
develop final guidance hi FY 1993, after gaining further experience in negotiating pollution
prevention settlement conditions.
I am confident that this interim policy will help the Agency secure the additional
protection of human health and the environment which pollution prevention offers. Any
questions you or your staff may have regarding its implementation should be addressed to Peter
Rosenberg, the workgroup Chairperson (Office of Enforcement, 382-7550).
Attachment
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WSG64
cc: Deputy Administrator
Associate Deputy Administrator
Deputy Regional Administrators
Regional Counsels
Regional Program Division Directors
Program Compliance Directors
Associate Enforcement Counsels
OE Office Directors
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WSG64
INTERIM EPA POLICY ON THE INCLUSION OF POLLUTION PREVENTION
AND RECYCLING PROVISIONS IN ENFORCEMENT SETTLEMENTS
I. Purpose
This document provides Agency enforcement personnel with a generic interim policy and
guidelines for including pollution prevention and recycling provisions in administrative or
judicial settlement agreements. It encourages pollution prevention and recycling both as a means
of returning to compliance and as supplemental environmental projects by offering several
incentives while preserving effective deterrence and accountability for compliance and
environmental results.
II. Background
The Agency defines pollution prevention as the use of procedures, practices, or processes
that reduce or eliminate the generation of pollutants and wastes at the source. Pollution
prevention encompasses both the concepts of volume reduction and toxicity reduction.1 Within
the manufacturing sector, examples of pollution prevention include such activities as input
substitution or modification, product reformulation, process modification, improved
housekeeping, and on-site closed-loop recycling. The Agency's "hierarchy" of environmental
protection practices consists of pollution prevention, followed by traditional recycling, treatment
and control, respectively.2
The Office of Enforcement's Prevention Action Plan (June 30,1989), states that a strong
enforcement program can promote pollution prevention.goals by enhancing the desire of the
regulated community to reduce its potential liabilities and resulting cost of resolving
noncompliance. An emphasis on preventing pollution at the source can help reduce or eliminate
root causes of some violations and thereby increase the prospects for continuous compliance in
the future.3 ; ,:.,
In addition to this "indirect incentive for pursuing pollution prevention, the Action Plan
recognized that pollution prevention could be directly achieved by initiating enforcement actions
1 See the forthcoming Pollution Prevention Policy Guidance, especially pps. 3-6, for a
full discussion of the considerations underlying the Agency's definition of pollution prevention.
Both the Guidance and the Pollution Prevention Act of 1990 (P.L. 101 - 508) exclude "end of
pipe" recycling from the formal definition of pollution prevention.
2 Although non-closed loop (i.e., "end-of-pipe) recycling occupies the second tier of the
"hierarchy" behind pollution prevention, it will, because of its environmental benefit, be included
.within the scope of this interim policy. All elements of this policy will apply to such recycling to
the same extent as use and production substitution activities which constitute the formal
definition of pollution prevention.
3 Office of Enforcement Pollution Prevention Action Plan, page 2.
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against individual noncompliers. The Agency is constrained from requiring (i.e., imposing
unilaterally) pollution prevention activities in the absence of statutory, regulatory, or permit
language. Until the Agency commences an enforcement action, respondents are generally free to
choose how they will comply with Federal environmental requirements. However, once a civil
or administrative action has been initiated, the specific means of returning to compliance are
subject to mutual agreement between the agency and the respondent.4 The settlement process can
be used to identify and implement pollution prevention activities consistent with the Agency's
overall enforcement approach. .
The Office of Enforcement chaired a workgroup, which included representation by the Program
Compliance Offices and Regions III, IV, and VIII, to develop an interim policy on the use of
pollution prevention conditions in enforcement settlements. In addition, OE and the Program
will receive funding from the office of Pollution Prevention for technical support to develop and
evaluate pollution prevention proposals in settlements in FY 1991-2 and to evaluate their utility
for promoting long-term compliance and for permanently reducing the level of pollutants or toxic
discharges into the environment.
III. Statement of Interim Policy
It shall be a policy of the Environmental Protection Agency to favor pollution prevention
and recycling as a means of achieving and maintaining statutory and regulatory compliance and
of correcting outstanding violations when negotiating enforcement settlements. While the use of
pollution prevention conditions is not mandatory (for either a program/Region to propose or for a
defendant/respondent to accept), Agency negotiators are strongly encouraged to try to incorporate
pollution preventions in single and multi-media settlements when feasible. The policy is
applicable to both civil and criminal enforcement settlements involving private entities, Federal
facilities or municipalities.
Among the types of situations which favor the use of .pollution prevention conditions in
enforcement settlements are:
a. recurring patterns of violations which are unlikely to be corrected by additional "add on"
controls or improved operations and maintenance, and elimination or substitution offers
the best prospects for the permanent return to compliance;
b. proposed solutions which do not create environmental problems in other media (i.e., have
no negative cross-media impacts);
c. effluent emissions or discharges for which technically and economically feasible
pollution prevention options have been identified;
4 Note that some pollution prevention related activities, e.g., environmental auditing, can
be sought as injunctive relief hi appropriate circumstances. See, Final EPA Policy on the
Inclusion of Environmental Auditing Provisions in Enforcement Settlements (GM-52)
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d. violations which involve one or more pollutants listed on the target list of 17 chemicals
the Agency will emphasize as part of the implementation of its Pollution Prevention
Strategy (see Appendix A for list of chemicals).
Pollution prevention settlement conditions can either be specific activities which correct
the violation or activities which will be undertaken in addition to those necessary to correct the
violation.
The interim policy should be implemented hi concert with the Agency's new Pollution
Prevention Guidance and Pollution Prevention Strategy, as well as office of Enforcement policy
documents, including the EPA Policy on the Inclusion of Environmental Auditing Provisions in
Enforcement Settlements (GM-52); A Framework for Statute-Specific Approaches to Penalty
Assessments: Implementing EPA's Policy on Civil Penalties (GM-22); and the newly issued
Supplemental Environmental Projects Policy (February 12,1991), which amends the "alternative
payments" section of GM-22; the Office of Enforcement's Pollution Prevention Action Plan
(6/30/89); and the Manual of Monitoring and Enforcing Administrative and Judicial Orders
(2/14/90);5
A. Pollution Prevention as a Means of Correcting the Violation
By definition, a use/source reduction or recycling activity which corrects the original
violation will be media and facility specific. When conducting settlement negotiations, the
Agency shall consider whether it is appropriate (e.g., technically and economically feasible) to
correct the violations) through implementation of source reduction or recycling activities.
Examples include compliance with permit requirements by switching from a high to a lower
toxic solvent which reduces excessive emissions or discharges or by recycling effluent.6
Pollution prevention conditions may be proposed by either the Agency or the respondent.
inclusion of any condition rests upon the outcome of mutual negotiations between the two sides.
B. Pollution Prevention Conditions "Incidental" to the Correction of the Violation
During negotiations to resolve the violation, the Agency also may consider as settlement
conditions supplemental pollution prevention projects in addition to the specific actions or
injunctive relief needed to correct the violation. Potential examples include phasing out a
pollutant within a specific period of time or a commitment by a facility to change production
technology at more than one facility.
5 These documents are available through the Office of Enforcement General Enforcement
General Policy Compendium and/or the Enforcement Document Retrieval System (EDRS).
6 A firm could theoretically return to compliance by reducing the scope of operations, i.e.,
by producing less and, therefore, reducing its discharge or emissions. Although this may return a
facility to compliance, it is not "pollution prevention" within the Agency's definition nor the
scope of this interim policy.
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Pollution prevention settlement conditions which do not by themselves correct the
violation will usually be negotiated as "supplemental environmental projects"and, as such, are
subject to the criteria described in the recently issued policy on the use of supplemental projects
which amends part of the Agency wide Framework for Civil Penalties (GM-22)7 The decision
to consider, accept or reject such projects rests exclusively with the Agency.
IV. Specific Elements of the Interim Pollution Prevention Policy
A. Timelines for Implementing Pollution Prevention Conditions
EPA's enforcement policy calls for the "expeditious" return of the violator to compliance.8
As a general rule, here shall be no significant ("significant" to be defined by each program)
extension of the "normal", time period for returning to compliance. Under no circumstances will
respondent be granted additional time to correct the violation in exchange for his conduct of a
supplemental environmental project, (see IV B 2, below). For example, a facility which exceeds
its effluent limit would have to return to compliance within the "normal" time period the NPDES
program estimates for facilities of that size and type. This time period would be extended if, as
part of the overall settlement, the. respondent also agreed to establish a sludge recycling system.
If a pollution prevention activity is presented, as the means of correcting the violation.
however, the Agency settlement team has some additional flexibility in negotiating an
implementation schedule, given that pollution prevention alternatives sometimes add an element
of complexity to a facility-specific compliance strategy, especially if it involves new or
innovative technology.
The length of time which is deemed to be "expeditious" is ultimately a "best judgment"
decision on the part of the EPA negotiators. It should be based upon their assessment of the
ecological and public health related risks and benefits involved in providing the additional time
to return to compliance.
While Federal negotiators should consider the following factors in deciding whether to
use innovative pollution prevention technology as injunctive relief at any time, they become even
more relevant when deciding whether to extend the "normal" timeline for resolving a violation.
If a decision is made to extend the timeline, the Federal negotiators should also establish interim
milestones and controls to assure the adequate protection of public health and the environment
while the pollution prevention relief is being implemented, (cf. Section C, below):
7 The term "supplemental environmental project" replaces the term alternative payments"
used in GM-22. The Agency has recently issued a new policy on the use of these projects,
Guidelines for Evaluating Supplemental Environmental Projects, which replaces the section on
alternative payments on pps. 23 - 27 of GM-22. It provides detailed guidance on the "scope" of
eligible supplemental projects, including ones which are related to pollution prevention. Also
see Section IV B2 below.
8 Civil Penalty Policy Framework (GM-22), page 13
6
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1. Seriousness of the Violation
Both the aggregate amount and toxicity of excess emissions or discharges affect the
decision whether to extend the compliance timeline. Some violations (e.g., those which meet
"imminent and substantial" endangerment definitions) must be corrected as quickly as possible.
even when that involves foregoing a pollution prevention approach in favor of traditional
treatment technology. Even when the violation has a much less potentially adverse impact,
Federal negotiators should consider whether the risk allows a longer timeframe.
2. Aggregate Gain in "Extra" Pollution Prevention
Schedules should be extended only where there is an important net permanent reduction
hi the overall amount or toxicity of the pollution as a result of a Pollution prevention project
which requires a longer timeline to implement than would "end-of-pipe" controls. (Note: This
consideration is appropriate only when a longer compliance timeline is at issue since, "all other
things being equal," the Agency would prefer a pollution prevention approach to traditional
treatment and/or disposal.)
3. Reliability/Availability of the Technology
The pollution prevention technology being used to implement the injunctive relief should
(ideally) have been successfully applied or tested at other facilities. While not intended to
discourage the use of innovative prevention or reduction technologies, the more "experimental"
or "untried" the technology, the more rigorous Federal negotiators should be about extending the
"normal" compliance timeline. The technology should also avoid the cross-transfer of pollutants.
4. Applicability of the Technology
The Federal negotiators should be more willing to extend the compliance timeline if the
pollution prevention technology is applicable to other facilities, so that, if successful, the lessons
learned can be disseminated industry wide.
5. Compliance-Related Conditions
The pollution prevention approach offers the best prospects for a permanent return to
compliance.
B. Penalty Assessments
1. General Considerations
Under EPA's general framework for assessing civil penalties (GM-22) and its program-
specific applications, most formal enforcement actions are concluded with a penalty. The two
elements of the penalty calculation are the gravity of the violation and the economic benefit of
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noncompliance. The fonner can be adjusted upward or downward depending several factors.
The latter sets the penalty "floor."9
The willingness of a respondent to correct the violation via a pollution prevention project can be
one of the assessment factors used to adjust the "gravity" component of the penalty.10 The
defendant/respondent s willingness to comply with permit requirements through pollution
prevention activities can be seen as a "unique factor" (e.g., public policy considerations) which
may warrant an adjustment of the gravity-based penalty factor consistent with program-specific
penalty policies..
Calculation of the economic benefit of noncompliance may have particular consequences
for the inclusion of pollution prevention conditions in settlements. For example, two of the
variables used by the BEN Model to calculate the penalty are the time expected to elapse from
the date of the violation until the date of compliance (i.e., the estimated future date at which the
facility would be expected to return to full compliance) and the expected cost of returning to
compliance.11 This calculation could create a disincentive for a respondent to correct the
violation with pollution prevention technology (i.e., the longer the facility is expected to be out
of compliance and the higher the cost of returning to compliance, the larger the economic benefit
of noncompliance and, ultimately, the larger the penalty.)
In order to eliminate this possible disincentive, the penalty amount should be calculated
using the costs and timeframes associated with both the pollution prevention approach and the
conventional way of correcting the violation. The final penalty will be the smaller of the two
calculations, so long as the Federal negotiators have decided to allow the "longer" timeframe for
returning to compliance. However, the settlement agreement should also provide for stipulated
penalties in the event the violation is not corrected or exceeds its compliance schedule.
Several other criteria currently contained in GM-22 will continue to apply to pollution
prevention projects. For example, a minimum cash penalty shall always be collected (subject to
program-specific guidance), regardless of the value of the project, and it generally should not be
less than the economic benefit of noncompliance.
2. Supplemental Environmental Projects
When settling an enforcement action, the Agency also may seek additional relief in the
form of activities which remediate the adverse health or environmental consequences of the
original violation. The size of the final assessed penalty may reflect the commitment of the
defendant/respondent to undertake these "supplemental environmental projects".
9 See OE's Guidance on Calculating the Economic Benefit of Noncompliance for a Civil
Penalty Assessment, (GM-33)
10 GM-22 pps. 3 - 4
11 GM-22, pps. 6 -10
8
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As noted previously, the Agency's recently issued Policy on the Use of Supplemental
Environmental Projects, which amends and supersedes GM-22's discussion on "alternative
payments," identifies pollution prevention projects as one of five general categories of projects
eligible for consideration.12 In order to be part of the consent order or decree, a proposed.
supplemental pollution prevention project must meet all of the criteria discussed in the policy,
including those which relate to the "scope" of the projects, the amount of penalty reduction, and
oversight requirements.
One important criterion involves the "nexus" between the violation and the supplemental
project. Nexus," which is defined as "an appropriate ... relationship between the nature of the
violation and the environmental benefits to be derived from the type of supplemental
environmental project," helps assure that the supplemental project furthers the Agency's statutory
mandate to clean up the environment and deter violations of the law.13
The policy also states that while studies are generally not eligible mitigation projects, this
prohibition will be modified slightly only for pollution prevention studies.14 The policy
specifically exempt pollution prevention projects from the "sound business practices" limitation
'which are in effect for the four other categories of supplemental environmental projects.15
Federal negotiators who are considering the adoption of supplemental pollution
prevention projects should refer specifically to the Policy on the Use of Supplemental
Environmental Projects to make sure that the proposed pollution prevention project meets all
applicable criteria.
C. Tracking and Assessing Compliance with the Terms of the Settlement
j
The Agency places a premium on compliance with the terms of its settlements and
several documents exist which outline procedures for enforcing final orders and decrees, which
may range from modification of the order to stipulated penalties and motions to enforce the order
and contempt of Court.16
12 The five categories cover pollution prevention, pollution reduction, environmental
restoration, environmental auditing, and public awareness.
13 Policy, p. 1. The extended discussion of "nexus" and example of supplemental projects
which meet the "nexus" requirement are on pps. 5-8.
14 Policy, p. 9
15 Policy, pps. 8 - 9
16 The respondents failure to carry out a pollution prevention activity which is a
supplemental project shall be dealt with through procedures outlined in GM-22 and the
Supplemental Environmental Protection Policy (e.g., reimposition of the full civil penalty and/or
the assessment of stipulated penalties contained in the settlement once the Government
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A more difficult situation arises when the respondent - despite his best "good faith
efforts" — fails to successfully implement a pollution prevention activity which in required to
correct the violation (e.g., is the injunctive relief). Ultimately, the respondent must be
responsible for full compliance. If the pollution prevention approach does not work, he will be
required to return to compliance through traditional means.
In order to make sure that the violation is corrected (as well as minimize any additional
liabilities which may accrue to the defendant/respondent) the consent order or decree will state
that any pollution prevention project which is used to achieve compliance with a legal standard
must have a "fall-back"schedule requiring the use of a proven technology agreed to by all parties
to the settlement and which will be implemented, if necessary, by a time certain. The settlement
agreement also should establish a systematic series of short term milestones so that preliminary
"warning signs" can be triggered promptly and issues raised. If the Agency decides that the
"innovative" pollution prevention approach will not succeed, the "traditional" remedy must be
implemented according to the set schedule. Under these circumstances, as long as the "fall-back"
remedy is implemented on schedule, the defendant/respondent will only have to pay an additional
penalty equal to the economic benefit of further delay in compliance offset by the actual
expenditures incurred as a result of the unsuccessful effort to comply through pollution
prevention. If the actual expenditures on pollution prevention equal or exceed the incremental
economic benefit of noncompliance using conventional controls, there would be no additional
penalty.
D. Delegations and Level of Concurrence
Settlement conditions which involve more than one program or Region (e.g., a multi-
media or multi-facility case) usually require additional oversight, and the estimated amount of
time and resources, required for effective oversight is one criteria which the Agency will use to
determine whether to include the settlement agreement. The respondent should shoulder as much
of the direct costs as feasible, (e.g., pay for an independent auditor to monitor the status of the
project and submit periodic reports, including a final one which evaluates the success or failure
of the project)
Each Region should develop its own coordination procedures for negotiating and
overseeing a multi-media pollution prevention condition which affect only that Region (i.e.,
applies only to the specific facility or other facilities within the Region).
The extent of coordination/concurrence required for a pollution prevention settlement
which involves more than one Region will vary according to the nature and complexity of the
proposal. The negotiation team should at a minimum notify and coordinate with other affected
Regions about pollution prevention conditions which would have an impact on facilities in those
determines that the conditions have not been fulfilled).
10
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Regions (e.g., an agreement for the respondent to conduct environmental audits; or an agreement
for solvent substitution at other facilities not in violation).
However, the negotiation team would have to receive the concurrence of all affected
Regions if the proposed pollution prevention condition involved significant oversight resources
or activities (e.g., if it required major construction or process changes). For this type of situation,
the settlement team must notify all affected Regions mat it is considering the inclusion of such
conditions as part of a proposed settlement prior to the completion of the negotiations. These
Regions will men have the opportunity to comment on the substance and recommend changes to
the scope of the proposal. Each entity will have to concur with the pollution prevention
condition and agree to provide the necessary oversight iiLorder for it to be included in the
settlement agreement. The Programs and Regions must also agree on their respective tracking
and oversight responsibilities before lodging the consent order or decree.
The Headquarters compliance programs and the Office of Enforcement will be available
to help Regions coordinate this concurrence process and to help the parties reach a consensus on
oversight roles and responsibilities, where necessary. Concurrence by the Headquarters program
office and the Office of Enforcement will be mandatory only where it is already required by
existing delegations or for supplemental projects as described in the Supplemental
Environmental Projects policy.
V. Organizational Issues
A. Copies of Settlements
The Regions should send copies of settlements with pollution prevention conditions to
the respective national compliance officer (consent order) or Associate Enforcement Counsel
(consent decree) for insertion to the Enforcement Docket Retrieval System (EDRS). In
addition, the Region should enter a brief descriptive summary of the settlement (1-2 pages) into
the Pollution Prevention Information Clearinghouse (PPIC, 1-800-424-9346) enforcement
settlement file which is being established. This will enable all the Programs and Regions to have
"real time" information about pollution prevention settlements which have been executed, and
will enable the Office of Enforcement and the programs to conduct an overall assessment of the
impact of pollution prevention conditions hi Agency settlements as part of the process of
developing a final settlement policy in FY 1993.
B. Media-Specific Policies
The media programs and Regions have begun to implement their own pollution
prevention strategies. Since they are still gaining experience in identifying and applying source
reduction technologies to enforcement situations, and developing the technology and resources to
11
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track and evaluate these conditions, this interim policy adopts a phased approach that encourages,
but does not require, them to try to incorporate pollution prevention conditions on a case-by-case
basis where they enhance the prospects for long-term compliance and pollution reduction.
Each national program manager may decide whether to develop its own specific pollution
prevention guidance (consistent with this interim guidance) or continue to use the general interim
guidance. Program-specific guidance should discuss whjgn to include pollution prevention
conditions in settlements, and describe the categories of violations for which pollution prevention
"fixes" are most encouraged and the specific types of source reduction or recycling activities
considered appropriate for that program. The National Program Manager may also adopt
additional reporting or concurrence requirements beyond those described in this interim policy.
The Programs can develop specific policies on their own schedule, utilizing this general interim
policy until they do so.
12
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APPENDIX A
INDUSTRIAL TOXICS PROJECT
17 TARGET CHEMICALS
1988 TRI Reporting Year
(in Pounds)
Chemical Name
BENZENE
CADMIUM & COMPOUNDS
CARBON TETRACHLORIDE
CHLOROFORM
CHROMIUM & COMPOUNDS
CYANIDE & COMPOUNDS
OICHLOROMETHANE
LEAD & COMPOUNDS
MERCURY & COMPOUNDS
METHYL ETHYL KETONE
METHYL ISOBUTYL KETONE
NICKEL & COMPOUNDS
TETRACHLOROETHYLENE
TOLUENE
1 .1 ,1-TRICHLOROETHANE
TRICHLOROETHYLENE
XYLENES
U.S. Production
1988
(in 000 Ibs)
ii,630,ooo*
4,i89c-li
747.000*
529.600*
291 .OOO0-2
417,600*J
504,100*
2.216.000"'1'2
1.026*1-"
482.000*
205,300*
100.000"-2
497.700*
6,300,000*
723.700*
200,000°
6,575,200**
Imports
1988
(in 000 Ibs)
956,800"
5,51 2*u
111.000°
27,000"
912,700oi
26.800*4
25.000*
374.800*''*
760"-u
20,000*
20,000"
320.000"-1;2
119,000"
886,800*
22.000*
13.000*
225.000"-'
Number
of
Facilities
453
166
84
166
1.882
355
1.525
1.277
43
2.284
933
1,253
680
3,606
3.518
868
3,187
Release
to Air
28,117,955
119,412
3.683.121
22,974,156
1.181.482
1,961.210
126,796,287
2,587,790
25,629
127,675,717
30,523,897
539,864
32.277,372
273.752.712
170,420,900
49.071,464
155,888,584
Release
to Water
46,589
4,382
15,667
1,089.285
389.475
193.456
347,336
237.014
1.406
76.593
762.108
209,887
33.284
254.175
94,310
13,550
299.375
Deep-Well
Injection
636.314
2.409
98,054
36,002
101,180
7,460,999
664.750
2,755
27
213,962
121.650
152.925
72,250
1,431,916
1.000
390
122,977
Release
to Land
221.192
541,530
14.759
68.483
28,125,080
108.299
156,647
27,494,165
13.779
155,049
31.912
3,644.070
105.644 •
882.691
187.396
20.940
834.174
Transfer
toPOTW
1,102,265
20.115
5.014
1,226.573
2.107.561
1.147.982
2.584,199
207,732
2,136
932.567
1,508,530
881.506
586.138
3,544.407
293.219
78.758
4,213,788
Other
Transfer
2.272.877
1,360.967
1.186.781
1.467,914
24,960,834
2.915.637
22.885.336
28.177.731
275.224
30,002.775
10.760.598
14,000,659
4,428.398
64.762.046
19.480.645
6.231.064
40.215.084
Annual Total
Release*
Transfer
33.097.192
2,048.615
5.003.396
26.862.413
56,865.612
13,805.563
153,434,555
58,707,187
318,201
159.056.683
43,708,695
19.428,911
37.503.086
344,627,947
190,477.470
55.416.166
201.573.979
a. Synthetic Organic Chemicals, USITC, 1989, Publication #2219.
b. Mannsville Chemical Product Synopsis, Mannsville Chemical Products Corp.
c. Mineral Commodity Summaries, U.S. Bureau of Mines. February 1989
d. Chemical Economics Handbook, SRI International
1. Production from primary and secondary refining, no mining data
Production and import data does not include metal compounds
2. Metals content except for gross weight of Chromium
3. Hydrogen Cyanide only
4. Sodium Cyanide only, 1987 data
5. Includes secondary Mercury released from Dept of Energy stocks
6. Only orth. and para Xylene reported
7. Only para Xylene reported
o
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG65
Date Signed: February 28,1991
MEMORANDUM
SUBJECT: Final SNC Definition for the SWTR
FROM: Connie Bosma, Chief (Signed by Ray Enyeart)
Drinking Water Branch, ODW (WH-550E)
TO: Drinking Water/Ground Water Protection Branch Chiefs
Regions I - X
This memorandum transmits the final Significant Non-Complier (SNC) definition for the
Surface Water Treatment Rule (SWTR). The final SNC definition for the Total Coliform Rule
(TCR) was sent out by my memorandum of December 19,1990. The SNC definition for the TCR
was finalized ag a result of the Drinking Water Branch Chiefs Meeting, held during the week of
December 3,1990. Unfortunately, we were unable to reach closure on the SNC definition for the
SWTR Rule during the meeting.
Two items presented difficulties in finalizing the SNC definition for the SWTR. First,
some Regions expressed concern over the weight that monitoring and reporting violations carried
in the proposed SWTR SNC definition. These Regions believed that the definition, as proposed,
was overly stringent for unfiltered systems because, under certain circumstances, a system could
become an SNC with as few as three monitoring and reporting violations hi a year. This valid
concern prompted us to propose the reintroduction of major and minor categories for monitoring
and reporting violations. A conference call was held on February 26 to discuss our proposal. The
Regions on the call agreed that the major/minor distinction should be made. Attachment 1
contains the definitions of major and minor that will be used in SNC determination for the
SWTR.
Secondly, there was concern over the proposal for unfiltered systems requiring filtration
- that if these systems failed to install filtration, they would become SNCs the day after they
were required to do so. Since-filtration will be required for many systems on a date certain [June
29,1993] there was concern that there would be a cluster of SNCs created on that single date,
and that it was unrealistic to expect that all would be appropriately addressed within in the
following six months.
We believe this potential situation can be avoided by "addressing" such systems before
they become SNCs. States can, and should, issue actions to systems as soon as they know that
the system will be unable to meet the required deadline. If States follow such a policy, they will
be able to stagger their workload prior to the June 29,1993 date. While this approach will not
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lessen the number of SNCs which occur on June 29,1993, it will allow for the majority of those
SNCs to already be appropriately addressed by that date.
The sole restriction to the above policy is that Bilateral Compliance Agreements (BCAs),
one of the four traditional "appropriate" enforcement actions, may not be used for larger
unfiltered systems (those serving 10,000 or more people). Since BCAs are not independently
enforceable, we do not believe they are appropriate tools, hi this instance, for larger systems.
BCAs, however, remain appropriate actions for those unfiltered systems serving less than 10,000
people. [Regions and States should note, however, that if a small system violates the
schedule of a BCA, the State must move to an administrative order or to a civil referral.] In
spite of this restriction, we believe that most of the potential SNCs should be able to be
addressed quickly and need not become "exceptions".
Please call Clive Davies at (202)260-1421 or Betsy Devlin at (202)564-2245 with any
questions.
Attachment
cc: Office of Enforcement (Kathy Summerlee)
Bob Blanco
PWSS Enforcement Coordinators, Regions I - X
Wade Miller (ASDWA)
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MAJOR AND MINOR M/R VIOLATIONS
M/R violations for the SWTR rule will be separated into two categories: major and
minor.
Major Violators: Systems that fail to take at least 90% of the required samples per reporting
period.
Minor Violators: Any other-violators.
Note: This definition will apply to both unfiltered and filtered sources. The definition
considers all samples required by the SWTR (lumped into one category -source
water coliform and turbidity, disinfectant residual, etc.). For example, if a system
is required to take a total of 460 samples per month, the system would be
classified a minor M/R violator if it took 414 samples. The system would be
major M/R violator if it took 413 or fewer samples. A more detailed explanation
can be found in Appendix D of the implementation manual for the SWTR.
Attachment I - M/R Violations
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FINAL SNC DEFINITION FOR THE SWTR
Unfiltered Systems
SNCs (Tier 1):
• A system informed of the requirement to filter before Jan., 1992 that does not
install filtration by June 29,1993,
-or-
• A system informed of the requirement to filter after December 1991 that does not
install filtration within 18 months of being informed that filtration is required,
-or-
• A system that has three or more major M/R violations in any 12 consecutive
months,
Tier 2:
• A system that has two major M/R violations in any 12 consecutive months,
-or-
• A system that has six or more minor M/R violations in any 12 consecutive
months,
Tier 3:
• All other violators.
Filtered Systems
SNCs (Tier 1):
• A system that has four or more treatment technique violations in any 12
consecutive months,
-or-
• A system that has a combination of six violations including treatment technique
violations and major M/R violations in any 12 consecutive months,
Attachment 2-SWTR SNC Definition
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Tier 2:
Tier 3:
WSG65
A system that has two or three treatment technique violations in any_ 12
consecutive months,
-or-
A system that has a combination of three, four, or five violations including
treatment technique violations and major M/R violations in any 12 consecutive
months,
-or-
A system that has-a combination of six or more violations including treatment
technique violations, major M/R violations and minor M/R violations in any 12
consecutive months,
All other violators.
Attachment 2 - SWTR SNC Definition
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG 66
Date Signed: July 18,1991
MEMORANDUM
SUBJECT: Policy for Applicability of the SWT Regulation to
Seawater
FROM: Connie Bosma, Chief
Drinking Water Branch
TO: Drinking Water/Ground Water Protection Branch Chiefs
Regions I - X
This memorandum is intended to clarify the intent of a letter from Mike Cook to Ms.
Charlene Denys of the Alaska Department of Environmental Conservation. Ms. Denys had asked
whether the Public Water Systems (PWSs) on oil rigs, which use reverse osmosis to purify
seawater, should be required to comply with the requirements of the Surface Water Treatment
(SWT) Rule.
Mike Cook's response to Ms. Denys is attached. Our response recommended to States
that PWSs using water from open seas not be required to comply with the SWT Rule. We made
this recommendation for three reasons. First, seawater is not generally affected by surface runoff,
due to depth and volume — the rate of dilution in sea water is much more substantial than in fresh
waters. Second, pathogenic organisms are inactivated quickly due to the high salt concentrations
in seawater. Third, and most significantly, seawater is generally treated through reverse osmosis
or distillation. These processes achieve a removal and inactivation of viruses that far exceeds the
levels required under the SWT Rule.
However, note that water from sources such as estuaries, river deltas and inland salt lakes
is not considered to be seawater. Such sources are required to comply with the SWT Rule.
I would like to clarify another point. The attached letter was intended to excuse seawater
systems from monitoring according to the provisions of the SWT Rule only. Seawater systems
are vulnerable to contaminants covered by other drinking water regulations. For example,
contamination from Volatile Organic Chemicals (VOCs) is a risk. Also, storage reservoirs and
distribution systems, regardless of the source, are always vulnerable to bacteriological growth, so
coliform monitoring must be performed.
Please call Clive Davies with any questions. He can be reached at (202)260-1421.
Attachment
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WSG66
March 11,1991
Ms. Charlene Denys
Manager, Drinking Water Program
Dept. of Environmental Conservation
P.O. Box "O"
Juneau, Alaska 99811
Dear Ms. Denys,
I am writing to confirm our understanding of a series of telephone conversations between
yourself, Wendy Mabile of BP Exploration and Stig Regli, the person who chaired the
development of the Surface Water Treatment (SWT) Rule. The discussion involved the question
of whether systems that obtain water from open seas and treat water using distillation or reverse
osmosis are subject to the SWT Rule. During the phone calls, Mr. Regli stated that EPA did not
intend to regulate such systems under the provisions of the SWT Rule.
"Surface waters" are regulated by the SWT Rule. The definition of surface water in the
SWT Rule is water open to the atmosphere and subject to surface runoff. It is our view that
seawater sources are not, by virtue of then* depths and volume, generally affected by surface
runoff. Accordingly, such sources would not come under the definition of "surface waters."
Moreover, seawater sources of drinking water are generally treated by distillation or through
reverse osmosis. These processes achieve a removal or mactivation of viruses and Giardia cysts
that far exceeds the levels required under the SWT Rule. Additionally, the health risk from
pathogens is generally much less significant in sea water than in fresh surface water sources.
Typically, pathogenic organisms are quickly inactivated in sea water due to the high salt
concentration. Also, the rate of dilution of pathogens released into sea waters is generally much
more substantial than hi fresh waters.
Once a state adopts regulations, interpretation of definitions and the scope of State
regulations is left to State discretion as long as any changes result in a regulation which is more
stringent than Federal requirements. We recommend to states that P WSs using seawater
sources not be required to comply with the SWT rule. States should, however, ensure that
design and operating conditions of systems using seawater sources are optimized.
We intend to propose and promulgate amendments to the SWT Rule in June 1993 and
June 1995 respectively. These amendments will include special provisions for systems using sea
water as their source water and recognize the technologies of reverse osmosis and distillation as a
means for achieving compliance.
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WSG66
Please call Clive Davies of my staff with any questions. Clive can be reached at
(202)260-1421.
Sincerely yours,
Michael B. Cook, Director
Office of Drinking Water
cc: Wendy Mabile
EPA Drinking Water/Ground Water Protection Branch Chiefs, Regions I-X
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 66A
Date Signed: August 21,1991
MEMORANDUM
SUBJECT:
FROM:
TO:
Definitions of Types of Public Water Systems and
Populations Served by Those Systems
Connie Bosnia, Chief (Signed by Ray Enyeart)
Drinking Water Branch
Drinking Water/Groundwater Protection j
Regions I-X
We have been asked several times recently to de-
served" of transient and nontransient noncommunity wat
the process of drafting guidance on populations we
which also beg for clarification. We, therefore, believethis
definitions related to the types of water systems
time. We have also included a flow chart th
water supply is. While we have attemptedjlffough
specific as possible, we realize that tWs gfmaance i
We do believe, however, that the document offejpsufficii
for reasonable and consistent decisJHibn sysjln catego:
ich Chief
Constitutes the "population
CWS& NTNCWS). In
ed to refer to other terms
is a g^jjfflgijbjtunitv to reiterate
e cases^BBBte terms for the first
in deciq|$gwhat type of system a
id flowchart, to be as
y could not be, a cookbook.
itions and explanations to allow
tion and population identification.
SYSTEM TYPE:
Prol
(NPD
follow. Emp
.is with ilBWfational Primary Drinking Water Regulation
of water systems. Excerpts of those definitions
the pivotal criteria.
*een service connections or regularly serves an average of
ty-five individuals daily. aŁ least 6Q days out of the year."
NTNCWS
TNCWS
•water system which serves at least 15 service connections used
•ear-round residents or regularly serves at least 25 year-round
1^
white water system that is not a community water system."
"a public water system that is not a community water system and
regularly serves at least 25 of the same persons over 6 months per year.
Not defined in regulation. Implied to be any NCWS which is not a
NTNCWS.
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WSG66A
The above definitions contain two terms which in turn require some explanation - "year-
round residents" and "same persons." We would define these terms as follows:
Year-Round Resident (or Residential Consumer)
an individual whose primary residence is served by the water syste
individual need not live at the residence for 365 days a year for it^
considered his/her year-round residence.]
Same Persons (i.e., Non-Residential but a Regu
an individual who does not reside at a pjffle served^^ihe wa&S^B&kbidffiis a
regular opportunity to consume water pfflmsjdfflthe system.
examples are children at school and empl^^^^heir workplace.}
We provided guidance earlier (September 16,1987^^hoTOm^Hjme a person had to have
access to a water system to be considered a regular consumer. hwSSBBlkthat guidance said:
Regular opportunity (or regular ae
jj^^r 4^V '^HI^I^HBH^Hfl^^^r'
four or more hours per d^forfou^r mo^^^^er week, for 26 or more weeks
per year.
There is another term which dJJnTd be djiled becigJerit is used frequently, even though it
does not appear in the NPD^Rs^^transiei^ffilsan^^consiimer." We offer the following
definition:.
opportunity, to consume waterfront a water system, but
'nition of a residential or regular consumer. [Obvious
le stopping by at a highway rest stop, people vacationing for a
a hotel or resort, people having lunch or dinner at a
PULATION:
: types of systems defined, we can define the populations served by each.
Population Served (for any type of system)
The number of residential consumers plus the average of the number of regular
consumers served, per day, during a month plus the average of the number of
transient consumers served, per day, during a month.
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WSG 66A
The averages of the regular and transient consumers may (and most likely will) change
from month to month, and season to season. For the purposes of determining compliance with
the State (or Federal) regulations, we propose that the State have the option to decide whether to
keep the population served as a fixed number throughout the entire year, or to change it from
season to season. If, however, the choice is to keep a fixed number (which is what we
recommend), it should be the highest average daily population that would occur during the year.
For purposes of reporting to the Federal Reporting Data System (FRDS), the population served
[data element Cl 17] could also change each quarter since States have maabilityJpBiange
inventory information in FRDS on a quarterly basis. Again, we would Qrasrthppfhe reported
populations remain as stable as possible, and therefore sugge|kthat th^g^^^n reported to
FRDS be the highest average daily population that would jfflrdiiringi
Following are a few examples of determining thMrpe of wjwsyste
ion:
i no residential consumers,
average of 300
e system is a
Iationof310(O
TOO transients / day) .
Example 2: A system, solely jibing a caMpgr^^^^P?wimming beach of a State
park, serves 4jysiple in thJpark ranJIrlTesidence (residential
consumers)^^Sbins j^pnated bjjffiie State - 300 people), and averages
another 25jl|fiitors pjfllay thatspm at the lake's beach. During the fall
Example 1: A system, solely serving a small re|
10 employees (regular consume^^anc
customers (transient consumers)per day,1
transient noncommunity WŁg^Hi^ni, servif
residents +10 regular i
e 20 cal
s, the c;
igthe
martially occupied, and usually just on
is closed but the lake is still open for
only the park ranger's residence is in operation.
•ansient noncommunity water system since it does not
jdential consumers and it does not have 25 or more
§?!CT more than 6 months per year. The system has an
ipuiation of 604 (4 residents + 50 regular consumers + 300
lumers + 250 transient consumers) during the most populous
Example 4:
stem, solely serving a rural elementary school, serves the principal
id 6 teachers and 85 students. The school is in operation for 9 months of
the year. The system is a nontransient noncommunity water system
because it serves 25 or more regular consumers for more than 6 months
per year. The system has an average population of 92 (7 regular
consumers + 85 regular consumers).
A system, serves a church, the minister's home, and 2 neighboring
homes. There are 5 people that reside in the minister's home, and a total
of 7 people that reside in the neighboring homes. The church operates a
year-round preschool which has 2 teachers and 15 children. The system
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WSG 66A
is a nontransient noncommunity water system because it serves a total of
12 residential consumers and 17 regular consumers, which are served for 6
or more months. An average of 100 parishioners attend church or Sunday
school each Sunday. In addition, the church holds other functions such as
choir practices, youth group meetings, and dinners. The daily average,
over any given month, for the transient population is 25 people. The
system has an average population of 54 (12 residents +17 rej
consumers + 25 transient consumers).
We request your review and comment on the above. Un^te the
with the proposal, we plan to issue the definitions as a WajA^Tpply'
there appear to be significant or sufficient objections to ^proposal.
propose a definition, or set up some type of forum to re^^e the ob&Ctions.
any comments to Ray Enyeart on 382-5551. I would aiUl&iat&sour feedback
Thanks.
Attachment:
disagreements
however,
and
-------
Flowchart for Determination of PWS, CWS, NTNCWS and TNCWS
WSG 66A
Does the supply have IS or more service
connections, or serve 25 or more consumers/day
for 60 or more days/yr?
Are 25 or more consumers/day
ever the same consumers?
Are the 25 or more same
consumers/day served 60 or more days/yr?
Are the 25 or more same consumers
served more than 6 months/yr?
Are the 25 or more same consumers/day
year-round residents?
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 67
Date Signed: September 1991,1992
Lead and Copper Rule Guidance Manual ~
Volume 1: Monitoring, September 1991
Volume 2: Corrosion, Control and Treatment, September 1992
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
811/B-92-002
NTIS:
PB92-112101 (Vol 1)
PB93-101533(Vol2)
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 68
Date Signed: September 27,1991
MEMORANDUM
SUBJECT: Final Guidance On Emergency Authority under Section 1431 of the Safe
Drinking Water Act
FROM: James R. Elder, Director
Office of Ground Water and Drinking Water
Frederick F. Stiehl,
Enforcement Counsel for Water
Office of Enforcement
TO: Water Management Division Directors
RegionsI-X
Regional Counsels
Regions I - X
This memorandum transmits the Office of Ground Water and Drinking Water
(OGWDW) and Office of Enforcement (OE) final guidance on invoking EPA's emergency
authority, granted under Section 1431 of the Safe Drinking Water Act (SDWA), to address water
supply hazards. This guidance has been reviewed and received concurrence from the Office of
General Counsel (OGC). This final guidance replaces the EPA December 28,1976 guidance
(Water Supply Guidance No. 10), entitled "Regional Guidance - Emergency Action on Water
Supply Hazards".
We want to thank the Regions for their thorough review of the draft guidance and
valuable input. A summary of the comments received and our responses is included as an
attachment to this memorandum. If you have any questions regarding this final document, please
call Anne Jaffe Murray in OGWDW on 260-7358 or Alan Morrissey in OE on 260-2855.
Attachment
cc: Regional Drinking Water/Groundwater Protection Branch Chiefs
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WSG68
UNITED STATE- ENVIRONMENTAL PROTECTION AGENCY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20*60
S8> 27 1991
KBHORAMDOM
SUBJECT: Final Guidance on Emergency Authority under Section
1431 of the Safe Drinking WaterAct
FROM: James R. Elder, Oirecto^^ ----
Office of Ground WatŁ? and Drinking Water
Frederick F.
Enforcement Counsel for Water
Office of Enforcement
TO: Water Management Division Directors
Regions I - X
Regional Counsels
Regions I - X
This memorandum transmits the Office of Ground Water and
Drinking Water (OGWDW) and Office of Enforcement (OE) final
guidance on invoking EPA's emergency authority, granted under
Section 1431 of the Safe Drinking Water Act (SDWA), to address
water supply hazards. This guidance has been reviewed and
received concurrence from the Office of General Counsel (OGC).
This final guidance replaces the EPA December 28, 1976 guidance
(Water Supply Guidance Mo. 10), entitled "Regional Guidance -
Emergency Action on Water Supply Hazards".
We want to thank the Regions, for their thorough review of
the draft guidance and valuable input. A summary of the comments
received and our responses is included as an attachment to this
memorandum. X'f you have any questions regarding this final
document, please call Anne Jaffe Murray in OGWDW on 260-7358 or
Alan Morrissey in OE on 260-2S55.
Attachment .
cc: Regional Dr.ir.king Water/Groundwater Protection Branch Chiefs
H l*l$l. PtO.0 P / H»l VlH.HtM
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WSG68
GUIDANCE ON INVOKING EMERGENCY AUTHORITY
UNDER SECTION 1431 OF THE SAFE DRINKING WATER ACT
Purpose of Guidance
This guidance is intended to emphasize that Section 1431 has a broad application and
provides EPA with an effective tool for handling public health endangerments concerning public
water supplies (PWSs) and underground sources of drinking water (USDWs). One of the
purposes of this guidance is to encourage a more widespread use of EPA's Section 1431 authority
by more fully explaining situations where this authority may be applied. In addition, this
guidance discusses EPA's internal procedures for issuing Section 1431 orders and provides
information on how to support and prepare an order.
Contents
This guidance is organized as follows:
• overview
• Elements of 1431 Authority
• Role of State and Local Authorities
• What Remedial Actions May Be Ordered
• Use of Administrative vs. Judicial orders
• Relationship between Section 1431 and Other EPA Emergency Authorities
• Parties Over Whom Section 1431 Grants EPA Authority Procedure for Issuing a
section 1431 order
• Footnotes
• Attachment 1 - Section 1431 (as amended in 1986)
• Attachment2 -HouseReport93-1185
• Attachment 3 - Model Section 1431 Administrative order - PWSS Program
• Attachment 4 - Model Section 1431 Administrative order - PWSS Program
(involving unregulated contaminants)
• Attachments -Model Section 1431 Administrative Order-UIC Program
Disclaimer
This guidance document on the application of EPA's emergency powers under Section
1431 of the SDWA 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.
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WSG68
Overview
Introduction
Contaminants may be present in or released into the environment as a result of inadequate
treatment of drinking water by a PWS, a leaking underground storage tank, or failure of an
underground injection (UIC) well, to name a few. These incidents may result in contamination in
or near a PWS or USDW that may pose an "imminent and substantial" endangerment to human
health. Authority granted under SDWA Section 1431,42 U.S.C. Section 300(i), gives the
Administrator broad powers to take appropriate enforcement action if he receives information
that:
• A contaminant is present in or likely to enter a PWS or USDW, and
• The contaminant may present an "imminent and substantial endangerment" to
human health, and
• The appropriate State and local authorities have not acted to protect public
health.1
The purpose of a Section 1431 action is to prevent an impending dangerous condition
from materializing, or to reduce or eliminate a dangerous situation once it has been discovered.
Section 1431 does not require an emergency in the ordinary sense of the word. Instead, this
provision focuses on "imminent and substantial endangerments" which is a broadly defined
concept (see discussion below). For example, one major function of Section 1431 is its use as a
preventative enforcement measure.2
As an "emergency" provision, however, Section 1431 should not be used as a substitute
for other SDWA provisions, where such other provisions are adequate to protect public health.3
For example, under the Public Water System Supervision (PWSS) Program, violations of
monitoring requirements or even of a maximum contaminant level (MCL) should generally be
addressed through use of the enforcement authorities (including administrative order authority) in
Section 1414. However, if the MCL exceedance may present an imminent and substantial
endangerment, then an emergency action under Section 1431 may be appropriate in addition to
any other SDWA Section 1414 enforcement action. An example under the UIC Program would
be a Class V UIC well operator who is injecting contaminants that may be causing or
contributing to an MCL exceedance or otherwise endangering an USDW. Although this
generally would be enforced as a violation of Section 1423, a Section 1431 action also may be
appropriate if an imminent and substantial endangerment may be present.
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WSG68
1986 Amendments to Section 1431
The SDWA Amendments Of 1986 clarified EPA's existing authority to order the
provision of an alternative water supply by persons who caused or contributed to the
endangerment. In addition, the 1986 Amendments strengthened EPA's authority to enforce
Section 1431. Previously, Section 1431 provided that EPA could enforce against any person who
"willfully" violates or fails or refuses to comply with a Section 1431 order. The 1986
Amendments removed the term "willfully" enabling EPA to enforce against any persons, whether
or not their actions were willful. Also, the 1986 Amendments clarified EPA's authority to protect
USDWs, as discussed on page 4. (Section 1431, as modified by the 1986 Amendments is
contained in Attachment 1.)
Delegation of Authority
On July 25,1984 the Administrator delegated the authority to issue administrative orders
under Section 1431 to the Regional Administrators (RAs) and the Assistant Administrator for
Water (Delegation No. 9-17). In some Regions the RA has redelegated this authority to the
division or branch level. The authority to make direct civil judicial referrals under Section 1431
has not been delegated by Headquarters to the Regions.
Elements of Section 1431 Authority
To apply the authority granted under Section 1431, two conditions must be met. First, the
Administrator must have received "information that a contaminant which is present in or likely to
enter a [PWS] or an [USDW] may present an imminent'and substantial endangerment to the
health of persons." Second, the Administrator must have received information that "appropriate
State and local authorities have not acted to protect the health of such persons." To realize the
full potential of Section 1431, the key elements of these conditions must be understood. These
elements are: contaminants that are covered under Section 1431, the definition of "likely to
enter", application to PWSS and USDWs, and the definitions of "imminent" and "substantial".
Each element is discussed in greater detail in this section.
Contaminant
Section 1401(6) of the SDWA defines "contaminant" very broadly to include "any
physical, chemical, biological, or radiological substance or matter in water. If under this broad
definition, EPA may take action under Section 1431 even when the contaminant in question is
not regulated by a National Primary Drinking Water Regulation (NPDWR) under the SDWA
(i.e., EPA has not issued a NPDWR for the contaminant or the regulation has been promulgated
but is not yet effective). This authority is clearly supported by the SDWA legislative history.
(See H.R. Rep. No. 1185,93rd Cong., 2d Sess., 35 - 36. The discussion of section 1431, in this
1974 House Report is shown in Attachment 2 of this guidance.)
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WSG68
Likely to Enter
Application of the Section 1431 authority is not limited to existing contamination of a
PWS or USDW but also may be used to prevent the introduction of contaminants that are "likely
to enter" drinking water. Thus, Section 1431 Orders should ideally be issued early enough to
prevent the potential hazard from materializing.4
Underground Sources of Drinking Water
EPA's Section 1431 authority is not limited to the protection of PWSS. It also extends to
the protection of all USDWs, whether or not the USDW currently supplies a PWS. The 1986
Amendments clarified EPA's existing authority to protect USDWs by making this authority
explicit in the statute.
The agency has defined "underground sources of drinking water" in 40 CFR Section
144.3. Under this definition, "USDW" includes both aquifers that currently supply a PWS and
those that simply have the potential to supply a PWS (according to the criteria hi Section 144.3).5
The ability to address the contamination of USDWs (rather than only PWSS) broadens EPA's
authority in two ways. First, it allows EPA to act under Section 1431 where the groundwater
source in question is only a potential supplier of a PWS. Second, it allows the Agency to protect
private wells that are at risk because of the contamination or threatened contamination of a
USDW.
Imminent and Substantial Endangerment
Assuming EPA can show that a contaminant is "present in or likely to enter" the drinking
water supply (either PWS or USDW), EPA also must show that a contaminant "may present" an
"endangerment" and that the endangerment is both 'imminent and "substantial."
Imminent Endangerment
Section 1431 authorizes EPA to address "endangerments" that are "imminent". The case
law that has developed on these terms (as used hi the SDWA or in analogous provisions of other
statutes), together with the SDWA legislative history, suggests the following guidance.
An "endangerment" is not actual harm, but a threatened or potential harm.6 No actual
injury need ever occur.7 Therefore, while the threat or risk of harm must be "imminent" for EPA
to act, the harm itself need not be.8 Public health may be endangered imminently and
substantially both by a lesser risk of a greater harm and by a greater risk of a lesser harm; this
will ultimately depend on the facts of each case.9
An endangerment is "imminent" if conditions which give rise to it are present, even
though the actual harm may not be realized for years.10 Courts have stated that an "imminent
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WSG 68
hazard" may be declared at any point in a chain of events which may ultimately result in harm to
the public.11 For example, in U.S. v. Midway Heights County Water District.12 individuals were
exposed to microbiological and turbidity exceedances, but actual illnesses had not yet been
reported. The court found that the presence of organisms that were accepted indicators of the
potential for the spread of serious disease presented an imminent (and substantial)
endangerment.
Endangerments can more readily be determined to be imminent where they involve
contaminants that pose acute human health threats. Examples include:
• A nitrate MCL violation when a sensitive population is. exposed (i.e., infants less
than six months of age)
• A waterborne disease outbreak with or without MCL violations
• A microbiological or turbidity MCL Violation with or without a waterborne
disease outbreak
• Injection of untreated sewage directly into an USDW that is used by a nearby
drinking water well.
However, acute contaminants are not the only ones that might pose an imminent
endangerment. Because an endangerment is created by the risk of harm, not necessarily actual
hiarin, EPA should determine whether a risk of harm is imminent. Therefore, contaminants that
lead to chronic health effects, such as carcinogens, also may be considered to cause "imminent
endangerment"13 even though there is a period of latency before those contaminants, if
introduced into a drinking water supply, might cause adverse health effects. In the SDWA
legislative history, the House Report specifically states that an imminent endangerment may
result from exposure to a carcinogenic agent.14
Section 1431 should not be used hi cases where the risk of harm is remote in time or
completely speculative in nature.15 However, in determining the imminence of a hazardous
condition, EPA may consider the time it may require to prepare orders, to commence and
complete litigation, to implement and enforce administrative or judicial orders to protect public
health, and to implement corrective action under Section 1431.16 For example, even where a
contaminant is not likely to enter a ground water supply for several months or longer (as can be
the case with a ground water plume moving toward a well), EPA may consider this hazard to be
"imminent" hi light of the time required to implement the actions described above. Further, even
where a hazardous condition has been present for some time (even years), case law supports the
view that EPA is not prevented from finding that the conditions present an imminent
endangerment.17
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WSG68
In addition, Section 1431 may be used to address threats to health from other than direct.
ingestion of drinking water. For example, in U.S. v. Midway Heights County Water District^8
individuals were exposed to bacteriological and turbidity contamination. The court determined
that although the water primarily was not used for drinking water, an imminent and substantial
endangerment existed from "human consumption" through such normal uses as bathing,
showering, cooking, dishwashing, and oral hygiene.
Substantial
The term "substantial endangerment" can apply range of existing or threatened hazards
and should not be limited to extreme circumstances. One court, interpreting "substantial
endangerment" as used in CERCLA, has stated that "the word 'substantial' does not require
quantification of the endangerment (e.g.. proof that a certain number of persons will be exposed,
that 'excess deaths' will occur, or that a water supply will be contaminated to a specific
degree)."19 Instead, the court found, an endangerment is substantial if there is a reasonable cause
for concern that someone may be exposed to a risk of harm. The court stated that a number of
factors (e.g., the quantities of CERCLA hazardous substances involved, the nature and degree of
their hazards, or the potential for human exposure) may be considered in determining whether
there is a reasonable cause for concern, but in any given case, one or two factors may be so
predominant as to be determinative of the issue.21 Of course, the emergency authority of Section
!431 should not be used in cases where the risk of harm is completely speculative in nature or is
de minimjs in degree.21
House Report 93-1185 gives the following examples of what may be considered a
"substantial" endangerment:
• "a substantial likelihood that contaminants capable of causing adverse health
effects will be ingested by consumers if preventative action is not taken"
• "a substantial statistical probability exists that disease will result from the
presence of contaminants in drinking water"
• "the threat of substantial or serious harm (such as exposure to carcinogenic agents
or other hazardous contaminants).22
Role of State or Local Authority
One of the crucial requirements of a Section 1431 enforcement action is that "appropriate
State and local authorities have not acted to protect the health of such persons." One court has
held that the receipt of such information is a jurisdictional prerequisite to action under this
section.23 Accordingly, Section 1431 should not be used to deal with problems that are being
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WSG68
handled effectively by State or local governments (including Tribal governments) in a timely
fashion.24 _
The Regions should not view this standard - whether a State or local authority has acted
to protect the health of persons as an issue of whether these authorities have "failed" to protect
public health. Instead, these authorities intentionally may defer action to EPA because the
Section 1431 authority may be more powerful or expeditious. In addition, the State or local
authorities may not have acted because they lack jurisdiction, as may be the case with actions
involving Tribal entities. Further, State or local authorities may decide to take action jointly with
EPA. In such cases, EPA would determine that State and local authorities have not acted (on
their own) to protect the health of persons. Therefore, EPA may proceed with Section 1431
actions when State and local authorities are working jointly with EPA.
Section 1431 also provides that prior to taking action and to the extent practicable in light
of the imminent endangerment, EPA shall consult with the State and local authorities to confirm
the information on which EPA is basing the proposed action and to determine what action the
State and local governments are taking or will take. Under Section 1431, then, it is not
mandatory to consult with the State and local authorities (i.e., they should be contacted "to the
extent practicable"). Nevertheless, the Regions should be aware that EPA will need a basis in the
record for the finding in the Section 1431 Order that State and local authorities "have not acted to
protect the health of persons." The Regions should ensure, therefore, that there is a written basis
in the record for this finding. This written basis could be simply a log of a telephone
conversation or correspondence between EPA and the State and local authorities.
If EPA has information that State/local agencies are going to act, EPA must decide
whether the action is timely and protective of public health. If EPA determines that the action is
insufficient and State and local agencies do not plan to take stronger or additional actions to
ensure public health protection, in a timely way, EPA should proceed with an action under
Section 1.431.25
Unlike under Section 1414 or 1423, a notice of violation (NOV) need not be issued prior
to taking a Section 1431 action. Note that, because Section 1431 applies to threatened as well as
existing harm, a regulatory violation may not yet exist at the time EPA issues the Section 1431
Order. An NOV, even if issued, would not be a means of consulting with the State and local
authorities to determine whether they have acted in a timely and appropriate manner to protect
the health of persons. An NOV serves only as a means of informing the State, PWSS, or UIC
owner or operator of EPA's intention to take an action. However, the Region may want to issue
an NOV (in addition to a Section 1431 order) as part of developing a separate enforcement action
under Section 1414 or 1423.
The Regions should note that they need to determine that both State and local authorities
have failed to act before bringing a Section 1431 action. The State can be of assistance to EPA
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in making this determination because the State should be able to identify the appropriate local
authorities and may be aware of whether these authorities have taken any actions. -
Remedial Actions That May Be Ordered
Once EPA determines that action under Section 1431 is needed, a very broad range of
options is available. The statute provides that EPA may take actions as may be necessary to
protect the health of persons. Moreover, EPA may take such actions notwithstanding any
exemption, variances permit, license, regulation, order, or other requirement that would
otherwise apply.26
The actions that EPA may take may include (but are not limited to):27
-• issuing orders as necessary to protect the health of persons who are or may be
users of such system (including travelers), including orders requiring:
the provision of alternative water supplies, at no cost to the consumer, by
persons who caused or contributed to the endangerment (e.g., provision of
bottled water, drilling of new well[s], connecting to an existing PWS)
information about actual or impending emergencies
public notification of hazards (e.g., door-to-door, posting, newspapers,
electronic media)
a study to determine the extent of the contamination, including inventory
and monitoring of PWSS and private wells or ground water
an engineering study proposing a remedy to eliminate the endangerment
and a timetable for its implementation
the halting of the disposal of contaminants that may be contributing to the
endangerment.
Commencing a civil action for appropriate relief including a restraining
order, or a temporary or permanent injunction. The injunction would
require the PWS, UIC well owner or operator, or the responsible party to
take steps to abate the hazard.
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Use of Judicial vs. Administrative Orders
The Region will need to choose between a Section 1431 administrative order or a civil
judicial action. A civil referral will be preferable to a Section 1431 administrative order if the
Region believes the responsible party will be uncooperative or recalcitrant or if the necessary
relief is long-term or otherwise appropriate for supervision by a U.S. District Court. Because all
1431 referrals are indirect, the Region must first transmit them to the Office of Ground Water
(OGWDW) and Office of Enforcement (OE) for concurrence before sending them to the
Department of Justice (DOJ). Headquarters will review and obtain the necessary concurrences as
quickly as possible.
If immediate relief is necessary, an expedited referral is possible through the use of a
telephone referral. The Region should send (via FAX) a very brief memorandum describing the
problem, the potential or actual health effects, and the action required by the identified parties to
Headquarters (OGWDW and OE) and DOJ. Upon receipt of the information, Headquarters will
arrange a conference call with all involved parties and obtain necessary concurrences as soon as
possible. Please note that DOJ has filed a complaint and a motion for a temporary restraining
order in as little as one day.
A Section 1431 administrative order offers EPA some unique powers. Unlike
compliance orders, Section 1431 Orders enable the Agency (versus the courts) to order actual
injunctive-type relief. This relief is limited only by the usual constraints of the Administrative
Procedures Act (APA). These require all Agency actions be reasonable and not "arbitrary or
capricious".27 Thus, by issuing an administrative order instead of filing a civil judicial action, the
Agency rather than the District Court determines the scope and timing of appropriate relief in the
first instance.
The recipients of the administrative order may challenge the terms of the order. Under
the judicial review provisions of Section 1448 of the SDWA, however, the petition must be filed
within 45 days in the appropriate Court of Appeals (a District Court does not have jurisdiction
to hear challenges to the administrative order). If the recipient fails to meet this condition, he
loses all rights to contest the terms of the order.
Any enforcement actions to require compliance with an administrative order or to seek
civil penalties for its violation must be in District Court. A recipient who violates or fails or
refuses to comply with the terms of the administrative order, may be subject to a civil penalty of
not more than $5,000 for each day in which the violation occurs or failure to comply continues.28
Relationship between Section 1431 and Other EPA Emergency Authorities
A Section 1431 order can be taken in conjunction with emergency orders under other
statutes. Emergency provisions exist under:
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• Resource Conservation and Recovery Act (RCRA) - Section 7003
• Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) - Section 106
Clean Water Act - Sections-504(a) and 311
• Toxic Substances Control Act - Section 7
Clean Air Act (CAA) - Sections 112(r)(9) or 303
Although similar in general terms, each of the emergency provisions of these statutes is
somewhat different. (Guidance on EPA's authority to address imminent and substantial
endangerment under CERCLA, RCRA, and CAA has been issued by the Agency.)29 For
example, Section 7003 of RCRA is very broad in that it allows for protection of the
"environment". However, it is somewhat limited in that the threat must be caused by a "solid
waste".
Section 1431, on the other hand, is limited to the protection of a PWS or an USDW, but
covers a broad universe of "contaminants". It is generally recommended that the Regions issue
joint orders under more than one of these statutory authorities, when possible, in order to
maximize the Agency's authority and minimize the risk of successful judicial challenge.
However, if the order is being unduly delayed by coordination difficulties, the Region should
proceed with the Section 1431 order, followed by an order under the other statute or statutes.
An important exception to this recommendation is that it may be inadvisable to combine
a CERCLA Section 106 or RCRA Section 7003 order with a SDWA Section 1431 order. One
advantage of the CERCLA and RCRA orders is that they generally are not subject to "pre-
enforcement" judicial review. That is, recipients of a CERCLA or RCRA order generally may
not challenge that order in a court at the time they receive it, but must wait until EPA brings a
court action to enforce the order. In contrast, SDWA Section 1431 orders generally are subject to
"pre-enforcement" judicial review. Because "pre-enforcement" review of the Section 1431
portion of the order would be available, the Agency's ability to avoid "pre-enforcement" review
of the rest of the order (i.e.. the portions issued under CERCLA or RCRA authorities) might be
jeopardized. However, if the Region is reasonably confident that it will enforce the order
expeditiously if the recipient refuses to comply, mis issue may not arise.
Because of the importance of this issue, the Regions should not issue a SDWA Section
1431 order jointly with a CERCLA Section 106 or RCRA Section 7003 order without first
consulting Office of General Counsel (OGC) and OE.
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Parties over Whom Section 1431 Grants EPA Authority
Section 1431 by its terms gives EPA broad discretion to issue any orders necessary to
protect the health of persons. EPA may issue Section 1431 Orders not only to an owner or
operator of a PWS, but also, for example, to State or local government units, State or local
officials, owners or operators of underground injection wells, area or point source polluters, or to
any other person whose action or inaction requires prompt regulation to protect public health.30
This authority authorizes the issuance of an order to a Tribal Government or Federal agency. (If
the order involves a Tribal entity, the Region should consult the Agency's Indian policy and
advise the Office of Federal Activities of orders issued against Federal facilities.)
In cases where the responsible party is not clearly known, the order should be issued to
the most likely contributors) based on the type of contaminant(s) found in the PWS and/or
USDW compared to current and past land practices in the area. As part of the order, EPA can
require that a study be performed to more clearly determine the responsible parties. An example
is a PWS which is contaminated with benzene, toluene, and xylene. Five gasoline service
stations are located near the PWS. An order could require each of the service stations to test for
leaks in their underground storage tanks.
EPA may even use Section 1431 authority to reach parties that are not responsible for the
endangerment. orders to a nonresponsible party ordinarily should be limited to those instances
where no responsible party exists or is suspected and the issuance of an order to a nonresponsible
party is the most appropriate means to protect or mitigate the endangerment. For example, an
order may require a PWS, contaminated by unknown polluters, to filter or relocate its water
source.
Procedure for issuing a Section 1431 Order
Components of a Civil Order
Administrative
The recommended basic components of an administrative 1431 Order are:
EPA's Statutory Authority
• Findings of Fact
• Conclusions of Law
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• Conditions (or Actions) Ordered by the Emergency Order - (Should also contain a
statement that requires the respondent to advise the Agency of his intentions to
comply with the terms of the order in a specified short time frame, e.g, 72 hours).
• Name and Address of EPA Contact
Attachments 3 and 4 are examples of Section 1431 administrative orders for the PWSS Program.
Attachment 5 is ah example of a Section 1431 administrative order for the UIC Program.
Components of a 1431 Order
Civil Judicial
If a judicial order is sought, the Agency must still determine that an "imminent and
substantial endangerment" exists. This should be done through a written determination or
affidavit, provided by the RA or delegates, that the conditions that support the need for an action
under Section 1431 have been met.
Degree of Support
Development of a Record
The issuance of a Section 1431 Order is an administrative action that must be supported
by an adequate written record in order to survive a potential judicial challenge. Therefore, the
Regions should ensure that the findings of fact in the order are adequately supported by
documents in the record showing the basis for EPA's technical determinations. Similarly, before
bringing a judicial action under Section 1431, Regions should ensure that sufficient information
has been compiled and can be presented to a court to support the action. This information would
take the form of technical documents, other background materials, and memoranda to the file.
EPA also may need to present information in the form of affidavits from the responsible EPA
officials.
Absolute Proof Not Required
Even though EPA should strive to create a record basis to support its Section 1431
actions, the Regions should recognize that EPA does not need uncontroverted proof that
contaminants are present in or likely to enter the water supply or that an imminent and substantial
endangerment may be present before taking action under Section 1431.31 Similarly, EPA does
not need uncontro verted proof that the recipient of the order is the person responsible for the
contamination or threatened contamination. Courts generally will give deference to EPA's
technical findings of imminent and substantial endangerment. The purpose of Section 1431
actions is to prevent harm from occurring. Extensive efforts to document the available
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information should be avoided, where the delay in obtaining such information or proof could
impair attempts to prevent or reduce the hazardous situation. The Region may usevfor example,
sampling data from public and/or private wells, the exceedance of the unreasonable risk to health
(URTH) level, data from toxicological studies, and the opinion of a toxicologist or other expert
as evidence that an "imminent and substantial endangerment" may exist.
State and Local Authorities Have Not Acted
As stated previously, before taking an action under Section 1431, EPA must receive
information that demonstrates that State and local authorities have not acted to protect public
health. The Region should have a written basis for this finding, which may consist of a telephone
log or written communications), that serves to document contact between EPA and State and
local authorities.
Headquarters Contact
The Region is not required to receive concurrence from Headquarters before issuing an
administrative Section 1431 Order. However, the Region may elect to receive advice from
Headquarters prior to issuing the order, especially those Regions with no or little experience in
issuing section 1431 Orders. OGWDW and OE, as in the past, are committed to providing
feedback to the Regions within 48 hours. Consulting in advance with Headquarters program
staff, OE and OGC may protect against subsequent adverse judicial determinations. In particular,
due to issues of "pre-enforcement" judicial review as discussed previously, the Regions should
not issue a SDWA Section 1431 Order jointly with a CERCLA Section 106 or RCRA Section
7003 Order without first consulting OGC and OE.
Headquarters has not delegated the authority under Section 1431 to the Region for a
judicial referral. The Region must submit a Section 1431 civil judicial order to OE and
OGWDW for concurrence. OE and OGWDW also will strive to provide feedback within 48
hours for any expedited judicial referral. If however, the referral under Section 1431 is not of an
"emergency nature" (i.e., has not been expedited), the referral will be processed in the usual 35-
day period.
Regardless of whether the Region prepares an administrative or civil judicial order, OE
and OGWDW request that the Region submit copies of all final orders for their central files.
No Citizen Suits Under Section 1431
SDWA authorizes citizens suits against EPA when the Agency has failed to take actions
that are mandatory under the statute. Because EPA's authority to take action under Section 1431
is discretionary, citizen suits to compel EPA to take action under 1431 are not authorized.32
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FOOTNOTES
Section 1431,42 U.S.C. Section 300(i) (emphasis added).
H.R. Rep. No. 1185,93rd Cong., 2d Sess., 35-36, reprinted in, 1974 U.S. Code Cong, &
Ad. News 6454,6488 ("H.R. 93-1185"). The preventative intent of Section 1431 is
apparent in the legislative history, which states:
the Committee intends that this language be construed by the courts and
the Administrator so as to give protection of the public health. Administrative
and judicial implementation of this authority must occur early enough to prevent
the potential hazard from materializing.
LL H.R. 93-1185, at 36, states that "section 1431 reflects the Committee's determination
to confer completely adequate authority to deal promptly and effectively with emergency
situations which jeopardize the health of persons." The Report further states that the
administrative authority of Section 1431 should "not be used when the system of
regulatory authority provided elsewhere in the bill could be used adequately to protect the
public health." I$L
SeeJi at 35-36.
While "USDW" is not defined in the statute, SDWA Section 1421(d) makes it clear that
the statute protects a broad category of waters. This section states that "[underground
injection endangers drinking water sources if such injection may result in the presence of
ground water which supplies or can be reasonably expected to supply any public water
system of any contaminant..." (emphasis added).
U.S. v. Conservation Chemical Co.. 619 F. Supp. 162,192 (W.D. Mo. 1985) (interpreting
the term "endangerment" in CERCLA1. citing Ethvl Corp. v. EPA. 541 F.2d 1,18 (D.C.
Cir. 1976), (en bane), cert, denied. E.I, du Pone de Nemours & Co. v. EPA. 426 U.S. 941
(1976) (interpreting the language "will endanger" in the Clean Air Act).
See Ethvl Corp. v. EPA. 541 F.2d at 13.
See U.S. v. Reillv Tar and Chemical Corp.. 546 F. Supp. 1100,1109-10 (D. Minn. 1982),
quoting H.R. 93-1185; U.S. v. Conservation Chemical Co.. 619 F. Supp. at 193-94. The
CCC court, construing similar language in CERCLA, stated that the standard is especially
lenient since it authorizes action "when there may be risk of harm, not just when there is a
risk of harm." Id» at 193 (emphasis in original).
See Ethyl Corp. v. EPA. 541 F.2d at 18.
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10 See U.S. v. Conservation Chemical Co.. 619 F. Supp at 193-94: B.F. Goodrich v. Murtha.
697 F. Supp. 89,96 (CERCLA action).
11 Dague v. Citv of Burlington. 935 F.2d 1343,1356, (2d Cir. 199D: U.S. v: Ottati & Gross,
Inc., 630 F. Supp. 1361,1394 (D.N.H. 1985).
12 695 F. Supp. 1072,1076 (E.D. Cal. 1988).
13 See Conservation Chemical Co.. 619 F. Supp. at 194, citing legislative history of RCRA
Section 7003.
14 See H.R. 93-1185 at 36. This view is underscored by the numerous other references in
the legislative history to the discovery of carcinogens and potential carcinogens in an ever
increasing number of water supplies. 1974 House Report, supra, at 6,10-11, 35; 120
Cong. rec. H10789, H 19793-94, H10798-99, H10801-02 (daily ed. Nov. 19,1974). This
concern was reiterated and strengthened in subsequent Congressional reviews of the
SDWA program. House Comm. on Interstate and Foreign Commerce, H.R. Rep. No. 96-
186, 96th Cong., 1st sess. 4-6 (1979), and Senate Comm. on Environment and Public
Works, S. Rep. No. 96-161,96th Cong., 1st Sess. 3 (1979).
15 This interpretation is supported by H. Rep. 93-1185.
16 SfiS 14; See B.F. Goodrich v. Murtha. 697 F. Supp. 89,96 (CERCLA action, quoting H.
Rep. 93-1185).
17 See In Re PCX. Inc.. 96 B.R. 49,55 (Bkrtcy., E,D.N.C. 1989) ("even when there is an
inordinate delay [by EPA], the court must find an immediate danger to public health if in
fact one exists").
18 695 F. Supp. 1072,1076 (E.D. Cal. 1988).
19 Conservation Chemical Co.. 619 F. Supp. at 194.
20 Id.
21 See H.R. 93-1185 at 35.
22 H.R. 93-1185 at 36.
tt
23 United States v. Occidental Petroleum Corp.. No. 79-989 (E.D. Cal. 1980).
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24 gee H.R. Rep. 93-1185 at 36. This implements legislative intent expressed in House
Report 93-1185 to "direct the Administrator to refrain from precipitous preemption of
effective State of local emergency abatement efforts."
25 Congressional reports and floor debates support the view that Congress inserted this
language in Section 1431 (and added certain procedural prerequisites before allowing
Federal enforcement in a primacy State) simply to avoid duplication between the Federal
and State enforcement and to preserve the primary responsibility for protecting the public
at the State and local levels. Id. at 22-34,35; S. Rep. No. 93-231,93rd Cong., 1st Sess. 9,
10 (1973); 120 Cong. Rec. H10789, H10793-94 (daily ed. Nov. 19,1974); 120 Cong.
Rec. S20241-42 (daily ed. Nov. 26,1974).
26 The legislative history supports this view. See H.R. Rep. 1185, at 35-36.
27 See Id. The House Report specifically mentions a number of these listed action as among
those EPA may take.
28 SDWA Section 143 l(b).
29 Guidance on CERCLA Section 106(a) Unilateral Administrative Orders for Remedial
Designs and Remedial Actions. U.S. EPA, OSWER Directive No. 9833.0-la, March 13,
1990.
Guidelines for Using the imminent Hazard. Enforcement and Emergency Response
Authorities of Superfund and Other Statutes. U.S. EPA, May 13,1982; Final Revised
Guidance Memorandum on the Use and Issuance of Administrative Orders Under Section
7003 of the Resource Conservation and Recovery Act rRCRAV U.S. EPA, September 26,
1984.
Guidance on Using Order Authority under Section 112(r)(9) of the Clean Air Act, as
Amended, and on Coordinated Use with Other Order and Enforcement Authorities. U.S.
EPA, April 17,1991.
30 See H.R. 93-1185 at 35.
31 See U.S. v. Conservation Chemical Co.. 619 F. Supp. at 193 (because of scientific and
medical uncertainties, proof with certainty is impossible).
32 See U.S. v. Hooker Chemicals & Plastics Corp.. 101 F.R.D. 451,455 (W.D.N.Y. 1984).
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ATTACHMENT 1
Citation from 42 USC 330i, (SDWA Section 1431)
SEC. 1431. (a) Notwithstanding any other provision of this title, the Administrator, upon
receipt of information that a contaminant which is present in or is likely to enter a public water
system or an underground source of drinking water may present an imminent and substantial
endangerment to the health of persons, and that appropriate State and local authorities have not
acted to protect the health of such persons, may take such actions as he may deem necessary in
order to protect the health of such persons. To the extent he determines it to be practicable in
light of such imminent endangerment, he shall consult with the State and local authorities in
order to confirm the correctness of the information on which action proposed to be taken under
this subsection is based and to ascertain the action which such authorities are or will be taking.
The action which the Administrator may take may include (but shall not be limited to) (1) issuing
such orders as may be necessary to protect the health of persons who are or may be users of such
system (including travelers), including orders requiring the provision of alternative water
supplies by persons who caused or contributed to the endangerment, and (2) commencing a civil
action for appropriate relief, including a restraining order or permanent or temporary injunction.
(b) Any person who violates or fails or refuses to comply with any order issued by the
Administrator under subsection (a)(l) may, in an action brought in the appropriate United States
district court to enforce such order, be subject to a civil penalty of not to exceed $5,000 for each
day in which such violation occurs or failure to comply continues.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG69
Date Signed: January 3,1992
MEMORANDUM
SUBJECT: Opportunity for Public Hearing in Conjunction with
Filtration Decisions
FROM: Robert J. Blanco, Director
Enforcement and Program Implementation Division
TO: Drinking Water/Ground Water Protection Branch Chiefs
Regions I-X
This memorandum responds to a question raised by Region X; however, the issue, that of
providing an opportunity for public hearing in conjunction with filtration determinations under
the Surface Water Treatment (SWT) Rule, is one of national significance.
Section 1412(b)(7)(C)(i) of the SDWA requires EPA to promulgate a regulation
specifying the criteria under which filtration will be required. Section 1413(b)(7)(C)(ii) states
that the Administrators to specify procedures by which the States are to determine which public
water systems within their jurisdiction must filter under the criteria of clause (i). These
procedures "shall provide notice and opportunity for public hearing on this determination".
Up to this point, we have not provided guidance'on the requirement for a public hearing.
Region X, which is making some filtration determinations asked:
(1) Do our regulations require that the States provide notice/opportunity for hearing on
their filtration determinations?; and
(2) What is EPA's position on a public hearing in cases where EPA makes the
determination on filtration?
In response to the first question, the proposed SWT rule contained a special primacy
condition which required States in their primacy program revision application to submit a
description of the protocol they were going to use to determine which surface systems would be
required to filter, "including procedures and timing to be used to inform the public and review
comments from them with respect to each such decision." 52 FR 42220 (November 3,1987).
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This special primacy condition was not included in the final regulation. We believed that
States already had processes to insure public participation and that those processes .would be
sufficient to cover SWT decisions.
EPA did not promulgate regulations to specify procedures for public participation in
filtration decisions that the Regions would have to make; however, the SDWA requires that we
provide an opportunity for a hearing on these determinations. We discussed this issue with the
Office of General Counsel and we suggest that Regions employ the procedures that are sued for
notice/opportunity for hearings on proposed PWS compliance orders.
Specifically, the Regional notification to the system of its filtration decision should also
state that the system or a member of the public may request a hearing or an informal conference
with EPA. In order to insure that the public is notified of our determinations and of their
opportunity to request a hearing, we suggest that you put a notice of your determination in the
local newspaper or post it in a conspicuous place in the community.
As with our compliance orders, any hearing or conference must be requested within 14
days; a request for a hearing or a conference will not stay the effective date of the determination.
Hearings are to be information gathering and should be conducted hi the same manner as are
hearings on proposed compliance orders. See 40 CFR 142 Subpart J "Procedures for PWS
Administrative Compliance Orders" and Water Supply Guidance # 35 "Notification and Public
Hearing Procedures for SDWA Section 1414(g) Administrative Orders", February 12,1987, for
additional details.
EPA has discretion on whether or not to grant a hearing if a member of the public
requests it. We generally state that if "sufficient public interest" is shown, we will grant a
hearing.
I hope that this guidance is responsive to ybur concerns. Should you have any questions,
please contact Betsy Devlin (FTS 564-2245) or Clive Davies (FTS 260-1421).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG70
Date Signed: June 26,1992
MEMORANDUM
SUBJECT: Guidance on Enforcement of the Requirements of the
Surface Water Treatment Rule
FROM:
TO:
James R. Elder, Director
Office of Ground Water and Drinking Water
Frederick F. Stiehl
Enforcement Counsel for Water
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. We 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 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 CFR 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.
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Violations
(1) Unfiltered Systems Allowed to Remain Unfiltered.
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 will 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 hi place, these systems must meet the disinfection requirements for filtered systems
in40ŁF_R141.72(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 .......-.••
-X
As with any violations, 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 SDWA. Exemptions under Section 1416 of the SDWA 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 "hi 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 (i)."
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 actions are needed to extend a statutory deadline.
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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 State
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.
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ENFORCEMENT OF THE REQUIREMENTS 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 CFR 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. Reqiu^ement 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 which 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.
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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 lettert 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 Not Meeting the Criteria for Avoiding
filtration.
(1) Background/Discussion of Statutory/Regulatory Requirements.
According to 40 CFR 141.71, a PWS must meet all the source water quality conditions
[141.71(a)] and all the site specific conditions [141.71(b)] 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?
(2) 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 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;
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(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 System 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.
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
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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 hi 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 hi 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 40CFR
141.72 or the interim disinfection requirements set by the State.
- A requirement to perform public notification as required by 40 CFR 141.32.
- 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 will 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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(C) PWSs Required to Filter but Cannot or Will Not Meet the June 29,1993 Deadline
for the Installation of Filtration.
(1) Background/Discussion of Regulatory Requirements.
According to 40 CFR 141.73, a public water system that does not meet all of the criteria
hi 141.71(a) and (b) for avoiding filtration must provide treatment consisting of both disinfection
as specified hi 141.71(b) and filtration by June 29,1993 or within 18 months of the failure to
meet any one of the criteria for avoiding filtration. "We are aware that many systems will not be
able to meet these deadlines due to construction schedules, lead time to obtain funding, etc. The
issue that arises is what is the appropriate response by the primacy agency."
(T> EPA Guidance.
(a} SNC Definition.
As we have stated in earlier documents, a system that is required to install filtration and
disinfection by June 29,1993 and does not bring filtration on line by that date will become a
significant noncomplier (SNC) immediately. This reflects our belief hi the importance of fully
implementing this regulation. As you are aware, once a system becomes a SNC, the States or
EPA have six months to take an appropriate enforcement action against the system. So that we
will not have a large number of systems to deal with in June 1993, we have strongly urged States
(and EPA where there is jurisdiction for a federal enforcement action) to begin (and complete
where possible) actions on as many of these systems as possible before the June 29,1993,
deadline. Any system subject to an action as described below by June 29,1993 will be
considered an "addressed SNC."
*
(b) Appropriate Actions.
(1) Background.
The SWT rule is different hi 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
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— 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 regulations;
for example, disinfection requirements or monitoring and reporting requirements.
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).
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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.
(3) 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 action 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.
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(4) Content of Consent Decrees or Administrative Orders Requiring the
Installation of Filtration.
Having specified the types of enforcement action that can be taken, it is now appropriate
to consider what items should he 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.
- An "up-front" penalty in State and federal consent decrees and in State administrative
orders (if allowed under State law) 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.
(c) Other Issues.
(1) 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.
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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.
(2) Exemptions.
Section 1416 of the SDWA provides States the authority to grant exemptions from any
maximum contaminant level or treatment technique requirement upon a rinding 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.
(D) Systems that 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.
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.
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(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.
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.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG71
Date Signed: August 25,1992
MEMORANDUM
SUBJECT: Final Guidances for State Sampling Waiver Programs
FROM: Robert J. Blanco, Director
Enforcement and Program Implementation Division
TO: Drinking Water & Ground Water Protection Branch
Chiefs
Regions I - X
This is to distribute the final national and Region V Guidances for State Sampling Waiver
Programs. I would like to thank Regions IV, V, VI and VIII for their comments on the draft
national guidance. We have tried to address these comments, while keeping the detail and length
of this guidance to a minimum.
I hope these documents will be useful to you in reviewing State primacy applications. If
you have any further questions about the Region V guidance, please call Ed Walters at 312/353-
2151, or have your staff call Tom Matheson at 312/886-6204. If you have any questions about
the national guidance, please call me at 202/260-5522, or have your staff call Mike Muse at
202/260-3874.
cc: Drinking Water Section Chiefs
Regional Phase II/V Coordinators
Ramona Trovato, GWPD
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GUIDANCE TO REGIONS FOR REVIEW OF STATE WAIVER PROGRAMS
UNDER PHASE II & V PRIMACY REVISION APPLICATIONS
Introduction
The purpose of this document is to provide guidance to regional offices to help them
review State waiver programs for surface water and ground water systems established pursuant to
the Phase II and V National Primary Drinking Water Regulations (NPDWRs). This guidance
summarizes waiver provisions in the NPDWRs and then presents the criteria Regions should
consider in reviewing State requests to take advantage of these provisions.
Waiver Provision
The Phase IW NPDWRs provide States the flexibility to grant waivers to systems. The
NPDWRs state that systems are responsible for submitting waiver requests to the States. The
States are responsible for acting on these waiver requests and deciding if the monitoring
requirements can be reduced. In the absence of a State decision, the water system is legally
responsible for performing full monitoring as though a waiver request had been denied. The
same is true in States conducting vulnerability assessments on behalf of their water systems;
failure by the State to complete a vulnerability assessment and issue a waiver does not excuse the
water system from its monitoring responsibilities.
Waivers are allowed for asbestos, lOCs, SOCs, and VOCs. They are not allowed for
nitrate or nitrite.1 Waivers for VOC monitoring in surface water can be used to reduce or
completely eliminate repeat monitoring, but waivers for VOC monitoring in ground water and all
IOC monitoring can be used only to reduce the repeat monitoring requirements. Waivers for
VOC monitoring and IOC monitoring can not alter the initial sampling requirements. Waivers
for SOC monitoring and asbestos monitoring can be used to reduce or eliminate all monitoring
requirements.
There are two basic types of waivers: use and susceptibility. States may also devise a
variety of combined use/susceptibility waivers. Use waivers may be granted where there is no
previous use (including transport, storage,.or disposal) of the contaminant within the watershed
or delineated area (VOG use waivers must include consideration of initial sampling results.).
Susceptibility waivers may be granted where the contaminant has been used or where the use is
unknown after considering several factors which would influence the probability of its
occurrence in the source water. These factors are:
1 The regulation of sulfate an NPDWR will be decided at some future date.
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• For Asbestos - presence of asbestos in the source water and the potential for asbestos
contamination in the distribution system, including the use of unlined asbestos-cement
pipe and the corrosivity of finished water;
• For IQCs - all previous analytical results, the variation in the concentration and other
factors affecting concentration e.g, changes in pumping rates, system configuration or
operating procedures, and stream flows or characteristics;
• For SOCs - (1) previous analytical results, (2) environmental persistence and transport of
the chemical, (3) proximity of the system to a potential point or non-point source of
contamination, including: spills and leaks at or near the water system; from
manufacturing, distribution, or storage facilities; from hazardous and municipal waste
landfills and other waste handling facilities; and the use of pesticides on agricultural
areas, forest lands, home and gardens, and other land application uses, (4) elevated nitrate
levels as an indicator of potential for pesticide contamination, (5) aspects of source water
protection, including depth of the well and integrity of its casing, and type of soil in the
delineated area, and (6) for PCBs the proximity of water pumps, electrical transformers or
other equipment that may contain PCBS.
• For VOCs - (1) previous analytical results, (2) environmental persistence and transport of
the compound, (3) proximity of the water system to potential sources of contamination,
including spills or leaks: at or near the water treatment facility; from commercial or
industrial use, disposal, or storage of contaminants; and from hazardous and municipal
waste landfills and other waste handling facilities, (4) number of persons served by the
system, and (5) the proximity of a small system to a larger system.
States can design their waiver programs in many different ways. Waivers can be given on
an individual system basis or on an area-wide basis. States could limit waivers to certain groups
of contaminants (e.g. pesticides). They may limit waivers to use waivers only; they may wish to
focus their resources on area-wide waivers only; or they may want to limit waivers to ground
water systems' or to systems serving certain population categories.
States should carefully evaluate their options to determine what type of program has the
greatest benefit for the resource investment, while providing an adequate level of public health
protection. Because waivers have a potentially significant long term payoff in terms of reducing
source water contamination, States should begin to establish waiver programs, even if they do
not yet have sufficient resources to implement vulnerability analyses for all contaminants.
Criteria for Reviewing/Approving State Waiver Programs
When reviewing State waiver programs, regions should be satisfied that the State
drinking water authority has thought through and adequately described: (1) the type of waiver
program it is adopting; (2) a sound method for meeting the minimum requirements (described
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WSG71
above) for granting waivers; (3) a sound way of coordinating its activities with its ground water
protection counterparts; and (4) adequate procedures for reviewing and approving waiver
applications and documenting the results. These criteria are described in greater detail below.
(1) Type of waiver Program: The State should identify the kinds of waivers it intends to
issue (use/susceptibility; types of contaminants; area-wide /individual) and the types of
systems eligible for the program.
(2) Method of Meeting Minimum Requirements: The State Primacy Application should
adequately answer the following questions:
• Does the State have a sound method for determining the monitoring waiver
review area and assuring that its time of travel equals or exceeds the term of the
waiver? Is this method the same or complementary to the area delineation method
used in the Wellhead Protection Program (WHPP)?
• Has the State adequately considered all sources of information to meet the
requirement outlined above, e.g. source water quality, management of existing and
future contamination sites within the monitoring waiver review area, pesticide
programs, wellhead protection and well construction records, geology or soil
data?
• Does the State present a reasonable plan for using this information to make sound
decisions, and is the plan easy to use and understand by field/county offices that
may help in making the determinations? Are the decision criteria and process
clearly explained i.e... would two reviewers come to the same conclusion using
the State's procedures?
(3) Coordination with Ground Water Program: The State should describe the
coordination between its waiver and ground water programs. If the State has adopted a
wellhead protection program, the waiver program should complement this effort by using
its area delineation methods and its contamination sites inventory. If the State has not yet
adopted a wellhead program, its ground water staff should participate in the waiver
program development", so that its future wellhead program is consistent with the waiver
program.
(4) Procedures for Reviewing/Approving/Documenting Waiver Decisions: The State
application should describe its overall procedures for granting, renewing and recording
waivers. The State should address who has authority to sign waivers, what the internal
review process is, and how it will document the decision. States should not allow their
field offices to grant verbal waivers to systems based on the "judgement" of the field
staff. The State should have a well documented and reasonably uniform process. State
waiver decisions are subject to EPA review, and future data verification efforts should
include a random sample of waivers.
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U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION 5
MONITORING WAIVERS GUIDANCE
Introduction
As part of the Phase 11 Regulatory package for 38 inorganic and organic contaminants, the U.S.
Environmental Protection Agency (U.S. EPA) established a standardized monitoring framework.
The U.S. EPA's use of a standard monitoring framework will apply to future monitoring
requirements for inorganics, Volatile Organic Chemicals (VOC), pesticides, and radionuclides.
Monitoring requirements for currently regulated contaminants will be integrated into the
framework when the existing regulations are revised.
The degree of variability among monitoring requirements poses both management and technical
barriers for States and water systems that are ultimately responsible for implementing and
complying with the regulations. In response, the U.S. EPA has attempted to standardize and
simplify monitoring requirements and synchronize monitoring schedules where possible. The
benefits of this action are:
1) Reduce the complexity of the
monitoring workload from a technical and
managerial perspective for both States and
water systems;
2) Level out resource expenditures for
monitoring and vulnerability assessments;
3) Reduce sampling and vulnerability
determination costs; and
4) Increase compliance with monitoring
requirements.
Standardized Monitoring Framework
To standardize monitoring, the U.S. EPA has
established nine-year compliance cycles (Figure 1).
Each nine-year compliance cycle has 3 three-year
compliance periods. All compliance cycles and
periods run on a calendar year basis (January 1 to
December 31). The first compliance cycle begins
on January 1,1993 and ends on December 31,
2001. Within the first nine-year cycle, the first
^Prinking WateifMonitoring^5^
K^J-*L-_- .°•.•-•• ;-,:.•.•:.-.:. .-..w-.;P.-.^J«ji1.-.'Ai
Third
-Year
Compliance
Figure 1. A nine-year compliance cycle with the
three-year compliance periods.
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WSG71
compliance period begins January 1,1993 and ends December 31, 1995; the second compliance
period begins January 1,1996 and ends December 31,1998; and the third compliance period
begins on January 1,1999 and ends December 31,2001.
The U.S. EPA's requirement to phase-in monitoring by system size is eliminated in the Phase II
Regulations. However, phase-in of the Phase V Regulations will be based on system size
(systems with 150 or more service connections will be required to begin monitoring during the
first compliance period, whereas systems with less than 150 will be required to begin monitoring
in the second compliance period). The States are required to schedule approximately one-third of
the systems for monitoring during each year of the initial three-year compliance period. Each
State has the flexibility to establish its own monitoring plan.
Monitoring Frequency
The U.S. EPA has established base monitoring frequencies for all community and non-transient
water systems. In cases of detection or non-compliance, U.S. EPA has specified increased
monitoring from the base frequencies. Water systems may decrease monitoring frequencies by
obtaining waivers from the State.
Increased Monitoring
All systems that detect contamination must sample
quarterly, until the State determines that the analytical
results are "reliably and consistently" below the
maximum contaminant level (MCL). "Detection" is
defined as the MCL for inorganics, except nitrate and
nitrite; 50 percent of the MCL for nitrate and nitrite;
0.0005 mg/1 for the VOCS; and at the analytical Method
Detection Limit (MDL) for the pesticides and PCBs
(figure 2). "Reliably and consistently" below the MCL
means that though the system detects contaminants in its
water supply, it has sufficient knowledge of the source or
extent of the contamination to predict that the MCL will
not be exceeded. Wide variations in the analytical results
near the MCL will not meet the "reliably and consistently" test.
In some cases, monitoring requirements for an initial monitoring event may be more prescriptive
than the more routine repeat monitoring requirements. For example, initial VOC monitoring will
require one sample during each of four consecutive quarters. Following this initial monitoring
event, compliance with VOC requirements may be satisfied by one sample per year.
L^S^J'1gf!i]g.^9*ion feM Jij I
olatile Organic:Chemicals ?
m m* SfcSWWRJrtte r.''BftJ"JftB»iO Vr ttn'irt o«it»Vr>..v? •"
aa5iBii!uw:.u
Figure 2. The various Phase II
contaminant "detection" levels for
determining repeat sampling requirements.
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WSG71
Grandfathered Data
At the State's discretion, VOC sampling data collected after January 1,1988 and SOC sampling
data collected after January 1,1990, can be used to satisfy the initial sampling requirements.
Systems using this grandfather provision could then sample at the repeat frequencies that
generally may be lower than the initial frequencies.
Waivers
Provisions are available by which States may waive sampling requirements if certain conditions
are met. These provisions are discussed in further detail in the section on Waiver Types. All
systems may be considered for waivers. Waivers must be granted on a contaminant-by-
contaminant basis. Systems which do not receive waivers must comply with the minimum
sampling requirements. Waivers may be issued for a maximum of 3, 6, or 9 year periods,
depending on the contaminant and system specific conditions.
NTAMlNXNT^WXlVER"TYPEi ^LENGTH %
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Three, six, or nine year waivers will reduce or
completely eliminate monitoring requirements during
the 9-year compliance cycle (Figure 3). Waivers
issued to ground water systems for VOCs reduce the
number of samples required to comply with the
regulations. Waivers issued for pesticides/PCBs and
the unregulated contaminants completely eliminate
sampling requirements. The waivers may be issued
at any time before the beginning of the monitoring
period in which the contaminant is to be monitored.
Waivers may be issued for a group of contaminants
analyzed under the same analytical method (Figure
4), in lieu of obtaining an individual waiver for each
contaminant in the group. An example of
contaminant grouping would be EPA analytical method 525.1. This analytical method is used for
Alachlor, Atrazine, Chlordane, Heptachlor, Methoxychlor, Pentachlorophenol and Lindane. For
a water supply system to apply for a group waiver, each contaminant in that group must be
eligible for the waiver.
Waiver Types
The types of waivers available to all systems are water system "use" waiver and "susceptibility"
waivers. In addition, States may choose to issue State-wide or region-wide waivers. These
"area-wide" waivers are based on "use" or "susceptibility" criteria specified in the Primary
Drinking Water Regulations.
Figure 3. Phase II contaminants with the type
and length of the waiver.
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WSG71
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1) "Use" Waiver:
"Use" waivers are
available for both
individual systems and
may be applied as an
"area wide" waiver.
The State or system
must determine if the
contaminant was used,
manufactured, stored,
transported, or
disposed of in the area.
For some
contaminants, an
assessment of the
contaminant's use in
the treatment or
distribution of water
also may be required.
"Area" is defined as
the watershed area for
a surface water system
or the area of recharge
for a ground water
system and includes
possible effects in the
distribution system,
such as the use of pipe
material, which may
allow certain VOCs to
permeate through the
pipe wall, or lack of an
effective back-flow
prevention program. If
the contaminant was
not used,
manufactured, stored,
transported, or
disposed of in the area, then the system may obtain a "use" waiver. If the system or State cannot
ascertain those factors, the system will not receive a "use" waiver, but may apply for a
"susceptibility" waiver. "Use" waivers will apply mostly to pesticides and PCBs where use can
more readily be determined than for VOCS.
Figure 4. Contaminant groupings according to EPA analytical method.
8
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WSG71
2) "Susceptibility" Waiver: This type
of waiver may be issued for individual
systems or applied on a regional scale.
If a "use" waiver is not granted, a
system may apply for a susceptibility"
waiver. Susceptibility waivers may be
issued when the following information
is reviewed and
evaluated: previous monitoring
results; contaminant persistence and
transport; soil and aquifer properties
and/or confinement system geology;
well construction; and known
abandoned well history. Systems with
no known susceptibility to
contamination based on an assessment
of the above criteria may be granted a
waiver. If susceptibility cannot be
determined, the system is not eligible
for a waiver.
General Approach in Issuing Waivers
Figure 5. "Susceptibility" waiver consideration items.
A first step is to issue "area wide" waivers for those pesticides (or group of pesticides analyzed
under the same analytical method) not used in the State or a region of the State. States may
choose to exclude specific systems, such as those failing to meet State well construction codes.
Since pesticide use is the easiest to determine and pesticides are most expensive to monitor,
States should begin their waiver program by considering "area wide" pesticide "use" waivers.
Following "area wide" "use" waivers, "susceptibility" waivers should then be considered for
those eligible regions or areas of the State for those contaminants identified as unlikely to
contaminate the source water. Individual system waivers should then be pursued to the extent
that it is economically feasible. A "susceptibility" waiver may be issued to a system in the
process of initial quarterly monitoring, thereby reducing the initial monitoring requirement,
provided the system did not detect the contaminant and meets the other requirements for the
waiver.
"Area Wide" Waivers
A State may issue "area wide" waivers without an application from the water system. An "area
wide" waiver may be issued to ground water supplies for contaminants not used or not likely to
contaminate the source water. Region 5 strongly urges a system to complete an initial round of
sampling before an "area wide" waiver may be issued for surface water supplies or for volatile
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WSG71
Figure 6. Steps to take for initial pesticides waivers
issued on an "Area Wide" basis.
organic chemicals (VOCS) (both ground
water and surface water supplies). Some
information that must be gathered and
evaluated includes: previous monitoring
data, geology type, aquifer depth and type
(confined or unconfmed), well construction,
pesticide use, agricultural chemical sales
data, cropping patterns, previous aquifer
susceptibility studies, soil studies, and
pesticide persistence/transport. Locations of
the following sites must be identified:
military installations, pesticide mixing sites,
SARA Title III sites, proposed or current
NPL sites, and RCRA sites. Various State
and Federal groups must be contacted to
determine what pesticides are eligible for
"area wide" waivers and to delineate the area included in the waiver. Examples of the State and
Federal agencies that should be involved in the decision process are: State Department of
Agriculture, State Wellhead Protection Program, (WHPP), State Ground Water Division, Soil
Conservation Service, Department of Interior, State and/or Federal Geological Survey, State
and/or Federal Hazardous Waste programs, State and/or Federal Solid Waste Administration
program, State Pesticide Committees, and University Agricultural Schools.
In addition to the information obtained on the non-use of certain pesticides, a State must have a
compliance program within the State Agricultural Department to verify the information. The
Director of the State Agricultural Department must submit documentation of that Department's
pesticide compliance program. At a minimum, the compliance program must consist of an
inspection component and an enforcement component. In addition, the Director must submit
documentation certifying the non-use of those pesticides eligible for waivers. The procedures for
obtaining the information and the methods used to determine the pesticides that will be eligible
for "area wide" waivers must be outlined in the State's primacy application.
"Area wide" waivers should be issued using a multi-step approach. The first step would be for
the State Agricultural Department to review the list of contaminants. The Departments should
provide the most site specific information available on manufacture, storage, use, persistence,
and transport of each pesticide on the list. The second step is to use the information to locate
geographical areas where the potential for contamination is small and/or non-existent. Then a
survey must be conducted to identify the "waste sites", SARA Title III locations, and military
installations. The public water systems that are located within an area that may be influenced by
contamination from one of these waste sites are not eligible for an "area wide" waiver. By using
these steps, the total number of pesticides to be tested could be reduced.
10
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WSG71
"DioxinArea Wide" Waivers
All public water systems, except those located within one mile of any facility utilizing chlorine in
the manufacturing process; a Superfund or NPL site; or a military installation, where dioxin may
be suspected of being present, are considered non-vulnerable and will not be required to monitor
for 2,3,7,8,-TCDD (dioxin). States may choose to vary the one mile limit to accommodate local
geologic or hydrologic conditions.
Systems NOT Covered by "Area wide" Waivers
For those systems not covered by an "area wide" waiver, an individual system waiver may be
sought. The same criteria used to evaluate potential "area wide" waivers should be used to
evaluate potential waivers to individual systems. In addition to the "area wide" criteria, the
system must define a monitoring waiver review area around the wellhead, conduct a source
identification assessment, and use this data to conduct a vulnerability assessment. The approved
wellhead protection area (WHPA) would typically represent-the minimum acceptable
monitoring waiver review area. The Wellhead Protection Program has established technical
methods for delineating a wellhead protection area for use in developing a wellhead protection
program. The approaches established by the WHP program are considered technically valid in
delineating the monitoring waiver review area and should be used. In order to avoid confusion
with the terminology of the WHP program, the term monitoring waiver review area should be
used in describing the delineated area surrounding the well in which the system or State will be
required to identify contaminant sources for use in conducting a vulnerability assessment prior to
being granted a monitoring waiver. For the States with an EPA approved WHP Program,
systems must be expected to factor in the approved wellhead program delineation approach
(methods and criteria) to establish the monitoring waiver review area. It is recognized that in
some unusual cases the WHPA delineated under the State's approved wellhead protection
program may not be large enough to provide a sufficient margin of safety for the purpose of
issuing monitoring waivers. These unusual cases will be evaluated on an individual basis.
Where a State WHPP is not yet approved the State PWSS program and WHP Program would be
expected to develop joint delineation criteria and a method or methods that would serve the
objectives of both programs, understanding that sometimes threshold values may need to be
different.
Once the monitoring waiver review area has been delineated, a site assessment must be
undertaken to identify the contaminant sources within the monitoring waiver review area. The
source identification will identify the types of contaminants found in the delineated area. Those
contaminants not found in the area may be eligible for a "use" waiver. If any of the contaminants
are found or were used in this area, a "use" waiver cannot be issued for those contaminants. For
those contaminants that do not meet the criteria for "use" waivers, a "susceptibility" waiver may
be considered.
11
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To issue a "susceptibility" waiver, it must
be shown that the water system is not
susceptible to contamination. The items
listed in figure 7 are some of the
components that should be reviewed to
determine if a system is susceptible to
contamination. A system may be required
to complete an initial round of sampling
for the contaminants with potential to
leach into ground water before being
granted a susceptibility waiver. Once
these criteria are met, susceptibility
waivers may be issued in areas with
contamination sources that are adequately
managed. The State must identify the
process by which these determinations are
made and how the decisions are made to
grant a waiver.
Susceptibility waivers for VOCs may be
issued if after three consecutive annual
samples, the system has no detects.
Grandfathering Data
WSG71
MONITORING WAIVER DECISION STRATEGY
1'; Review all previous monitoring data.
2. If the system has any previous history of chemical detects, the
system is not eligible for waivers,
3: The system must delineate a monitoring -waiver review area around
the water source. . '.":"': •">.•.• -;-
4; The system must then identify all sources of contamination within
the delineated area through a source identification process.
5. If any of the contaminants are used, stored, manufactured, or
transported within the monitoring waiver area, the system is not
eligible for a "use" waiver. The system may be eligible for a
"susceptibility" waiver.
6. The geology of the area must be identified. If the water sources is
located in an area of cavernous limestone (karst), the system is not
normally eligible for a "susceptibility" waiver.
7. The system must determine the aquifer type. A ground water
system under the direct influence of surface water is not eligible for
a "susceptibility" waiver.
8. The well(s) must meet the State construction codes. Any well logs
must be reliable and accurate. If a well does not meet well
construction codes, a susceptibility waiver would normally not be
issued.
9. The persistence and transport of each contaminant must be known.
Figure 7. Some of the items to consider in issuing individual
system susceptibility waivers.
The grandfathering provision allows
systems to substitute a single sample for the four consecutive quarterly samples required under
the initial base monitoring requirements of Phase II and Phase V. The VOC sampling must be
completed after January 1,1988 and the SOC sampling must be completed after January 1, 1990,
to satisfy the initial monitoring requirements.
12
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 72
Date Signed: November 30,1992
MEMORANDUM
SUBJECT: Enforceability of Filtration Determinations Under the SWT Regulation
FROM: James R. Elder, Director
Office of Ground Water and Drinking Water
Frederick F. Stiehl
Enforcement Counsel for Water
TO: Water Management Division Directors
Regions I - X
Regional Counsels
Regions I - X
This letter finalizes attachment 1, the guidance on remaking filtration determinations
under the Surface Water Treatment (SWT) Regulation. On September 9,1992, a memorandum
signed by Bob Blanco forwarded the guidance in draft for your review. Many of you forwarded
comments, almost all of which we were able to incorporate in some form. The comments have
been summarized and have been included as attachment 2.
The attached guidance addresses a potential problem with the enforceability of many of
the filtration determinations that have been made under the Surface Water Treatment (SWT)
Regulation. According to the Safe Drinking Water Act (SDWA) and our SWT Regulation, the
State (i.e., the primacy agent) was required to determine, by December 1991, which surface
water sources were required to filter and which could remain unfiltered. The States made most
of the filtration determinations by this deadline but, in most cases, the State was not the primacy
agent for the SWT Rule because EPA had not approved the State's primacy program revision.
Therefore, the filtration determinations made by the States may not be federally enforceable,
because no federal determination was ever made. EPA is now vulnerable to claims that we failed
to make the filtration determinations as required by the SDWA.
The guidance covers four general scenarios under which filtration determinations could
be declared invalid due to lack of authority, or on procedural grounds, if challenged in federal
court, and identifies the steps that need to be taken to cure these defects. These potential
problems were brought to our attention by a lawsuit filed by the Coalition of Watershed Towns
against New York State, New York City and EPA. The first scenario involves a State that has
made filtration determinations without appropriate authority. That is, the State did not have an
effective SWT Regulation or any general authority under which the State could make an
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WSG72
enforceable determination. This is the most serious of the four scenarios, as the filtration
determinations are not enforceable at the federal pj State level and are effectively null and void.
At least four States may have made filtration determinations that fall into this category. These
four are Vermont, New York, Virginia, and Hawaii. We ask that you move as quickly as possible
to determine whether the State in fact had authority to make determinations, and if not, to ensure
that filtration determinations are made by EPA or are reissued by these States.
The second scenario involves filtration determinations that may be judged invalid on
procedural grounds. In the majority of States filtration determinations were made under effective
State regulations, but without primacy revisions approved by EPA. In these States, filtration
determinations could be challenged in an EPA action brought to enforce the June 1993 deadline
for the installation of filtration, even though the determinations are valid and enforceable under
the State regulation. This is because the SDWA requires States to make filtration determinations
but provides that if a State does not have primacy, EPA will have the same authority as the State.
Even if a State issued its determinations during the period covered by a State/EPA
extension agreement, the determinations will not be federally enforceable. As a result of the
National Wildlife Federation challenge to the Primacy Rule, the court, in its ruling, stated that an
extension period is essentially a period of "split primacy." Under split primacy, the State retains
primacy for those portions of its drinking water program that have been approved by EPA. Only
EPA, however, may make filtration determinations until the State primacy revision for the SWT
Regulation has been approved by EPA. After some careful consideration and consultation with
all Regions, we decided that the filtration determinations for the SWT Regulation are too
valuable to risk to legal challenges, and therefore, all determinations must satisfy the
SDWA and be federally enforceable. Consequently, in the situation where a State has adopted
regulations but had not had its primacy revision for the SWT Regulation approved at the time the
determinations were made, the State's determinations must be ratified.
•
The third scenario involves the requirement for notice and opportunity for public hearing
at the time of filtration determinations. The SDWA required this notice but it was not
specifically included in the regulation. Guidance on public notification procedures was not
issued until January 6,1992. As a result, many States did not give notice and opportunity for
public hearing when making filtration determinations. We are concerned that determinations
made without such notice will be vulnerable to challenge and may be declared invalid on
procedural grounds. We ask that you ensure that if notice for opportunity of public hearing was
not given at the time of the filtration determination, such notice be given as soon as possible.
The fourth scenario involves States with a mandatory filtration requirement. Where EPA
has not approved such a State for primacy under the SWT regulation, the proposed solution for
these systems is as set forth above. Alternatively, if EPA is close to approving the State's
primacy revision application, it can reaffirm the State's filtration determinations simultaneously
with approval of primacy.
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WSG72
Enforcement of filtration determinations is one of our highest priorities and the
procedural and authority problems that we are facing are serious. However, we have the
opportunity to correct these problems now to avoid the risk of litigating them in subsequent
enforcement actions. Although we can attempt to preserve the filtration determinations already
made, the compliance schedules may not be enforceable if the original determinations contain
any of the deficiencies discussed above. Consequently, because of the importance of the SWT
Rule, we ask that you work with your States, using this guidance, to ratify, re-make, or co-sign
filtration determinations that may be at risk.
For some of you, rapid approval of primacy revision is crucial to re-making filtration
determinations. Therefore, we offer the services of the contractor that reviews primacy revision
applications. The contractor has extensive experience with the SWT Regulation and can point
out deficiencies hi State regulations and special primacy condition submissions where they exist.
Please contact Clive Davies for more information.
Please call either of us with questions. Your staff can contact Betsy Devlin of OGWDW
at (202) 564-2245, Clive Davies of OGWDW at (202) 260-1421, or Mimi Guernica of OE at
(202) 564-7048.
Attachment
cc: Drinking Water/Ground Water Protection Branch Chiefs
Vanessa Leiby (ASDWA)
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WSG72
FINAL GUIDANCE
ENFORCEABILITY OF FILTRATION DETERMINATIONS FOR THE SWT REGULATION
This guidance provides responses to address some potential problems with the enforceability of
filtration determinations made by some States under the Surface Water Treatment (SWT) Regulation.
The guidance discusses four general scenarios under which filtration determinations could be declared
invalid either due to lack of authority or on procedural grounds, if challenged in federal court. The first
two scenarios involve filtration determinations made by States that did not have the authority to make
the determinations under State or federal law. The third scenario deals with States that made filtration
determinations without allowing for notice and opportunity for public hearing. The fourth scenario
discusses States with a mandatory filtration requirement.
Scenario 1: Filtration determinations made by States without appropriate authority
and
Scenario 2: Filtration determinations made by States with effective regulations but without
primacy revision approved by EPA
In scenario 1, a State has made filtration determinations without an effective SWT Regulation or
the general authority that would make a "must filter" determination enforceable at the State level. This
situation is very serious, as the filtration determinations are not enforceable at the State or federal level
and are effectively null and void. The Regions must work as quickly as possible to ensure that all
filtration determinations made without State authority are made by EPA or are reissued by the State. In
the event the determinations are reissued by the States prior to primacy approval, the procedures
described in scenario 2 must be followed.
Scenario 2 describes States that have made filtration determinations under the authority of
effective State regulations, but without primacy approved by EPA. The majority of the States in the
country fall into this category. Under this scenario, the State regulations may be complete and merely
require EPA approval or the State regulations may need revision before approval.
The "solutions," or approaches, outlined below are options available to the Regions that will
make filtration determinations enforceable at the federal level. The following paragraphs touch only
briefly on each approach and the Regions will probably have to consider more issues man those
discussed here because of problems unique to each State. We understand that differences in State laws
and philosophies will be large factors as the Region decides which approach to take. One factor not
addressed below is enforceability of any federal determination at the State level. Many States will argue
that filtration determinations made at the federal level are enforceable at the State level once State
regulations are in place. Other States will enforce only the filtration determinations that they have made.
We encourage the Regions to consider State enforceability as filtration determinations are ratified. We
Attachment 1 (Final Guidance) ~ November 1992
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WSG72
are trying to be sensitive to concerns such as these, and realize that the Regions are the appropriate party
to choose a method to re-make the determiriations on a case-by-case basis. However, we should be
aware that for water systems required to install filtration and unable to do so within 18 months of the
filtration determination as required by the SDWA, if the State fails to act, EPA will have to pursue
enforcement actions. (For additional information on this subject, please refer to our June 26,1992
"Guidance on Enforcement of the Requirements of the Surface Water Treatment Rule.")
At this time, we are uncertain that the original filtration determination date can be preserved
where the State acted without an effective SWT Regulation. Because we are interested in obtaining
compliance as soon as possible, however, we have drafted the attached model letters, in the alternative,
to the public water systems. The letters reference the original determination date as the operative date,
but provide that if the original date is declared invalid for any reason, a new determination is being made
in the letter.
Solution 1: The State may ratify its earlier determinations.
This is probably the most palatable solution for all concerned, as it will minimize the Region's
involvement and any State perception that EPA is taking too large a role. Before a State can ratify its
own determinations, it must have adopted a State SWT Regulation and must have been granted primacy
for the regulation. Unfortunately, in most States, revision of primacy has not been and will not be
granted in the near future, making this approach impractical in most instances. However, in States such
as Massachusetts, where approval of primacy is imminent, State ratification is a practical solution.
State ratification of a filtration determination could be accomplished through certified mail
reminder letters to each system. The letter ratifying a filtration determination need not be a one purpose
document. For example, the State could incorporate the ratification into a letter that establishes an
installation schedule for filtration, or forwards the results of the on-site inspection. However, because
the ratification letter should be sent out over the course of the next few weeks, it may require separate
correspondence. A ratification letter should reaffirm the original filtration determination date and, if the
system was required to filter, the date filtration is required. The letter should also provide that, if the
original date is declared invalid for any reason, a new determination is being made in the letter. Also,
the letter should be signed at the same signature level as the original filtration determination letter. If
notice and opportunity for public hearing was not previously given, it must be issued at this time. (See
discussion under scenario 3.)
Attachment 1 (Final Guidance) — November 1992
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Solution 2: The State and Region may ratify the State's earlier determination in a co-signed
document.
We expect that most filtration determinations will be ratified using this method. Co-signing is an
approach that allows the Region to concur on a State determination, showing faith in the State program.
However, we understand and agree that a Region should not co-sign a determination without some level
of review. After discussion with the Regions, we discovered that these reviews need not be resource
intensive for at least two reasons. First, the Region may choose to ratify only "must filter"
determinations. This is because the default in the federal SWT Regulation (if no filtration determination
is made) is "unfiltered avoiding filtration." Specifically, the federal regulations, at 40 CFR 141.71 state
that "a public water system must meet [the avoidance criteria in the rule] unless the State has determined
that filtration is required." The Region should do a cursory review of at least the largest of these "no
filter" determinations to ensure that they are appropriate. However, no action on our part would legally
constitute a "no filter" determination and require the system to comply with the requirements of 40 CFR
Subpart H that apply to unfiltered systems avoiding filtration. Second, most filtration determinations
were made with a high level of Regional involvement. In fact, at least two Regions had representatives
sitting on filtration determination panels.
A co-signed document is obviously more difficult to produce than a single party ratification
letter, but, because of delays in primacy revision approval, co-signed documents should be used to ratify
determinations in most States. Furthermore, if a State obtained primacy revision approval, but the State
regulations did not specify the need for notice and opportunity for public hearing on filtration
determinations, co-signed documents should be used and the State should be encouraged to amend its
regulations to include the requirement for notice and availability of public hearing. If it is impractical
for the State to amend its regulations, the region and State should agree, in writing, on procedures to
ensure that public hearings are offered. Attached is an example of a co-signed ratification document that
we recommend you use as a basis for developing ratification documents. The co-signed document
should reaffirm the original filtration date, but provide that if the original date is declared invalid for an)
reason, a new determination is being made in the letter. The co-signed document should be sent
certified mail and should be signed at the same level as the original filtration determination by the State
and by the Region. The appropriate level of Regional signature should be decided for each State. The
authority to sign rests with the Regional Administrators and can be re-delegated.
Solution 3: The Region may ratify the State's earlier determination.
This solution would be appropriate if, as in the case of New Hampshire, the State requested the
Region to reinforce the earlier State determination. Also, this method would be used where the State
would not or could not cooperate in ratifying determinations. Of course, for most States, the Regions
will take this course of action only as a measure of last resort. We agree with this approach but
emphasize that the filtration determinations must satisfy the mandates of the SDWA and must be
federally enforceable. If the State cannot be convinced to cooperate, EPA must take the initiative and re-
make the filtration determination alone.
Attachment 1 (Final Guidance) - November 1992
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An EPA document that ratifies a filtration determination can be modeled on the attached
document. The document should reaffirm the original filtration date, but provide that if the original date
is declared invalid for any reason, a new determination is being made hi the letter. Th& document should
be sent certified mail. The appropriate level of signature can be decided by the Region. The authority to
sign rests with the Regional Administrators and can be re-delegated.
Solution 4: The Region may change the State's earlier determination.
The high level of Regional involvement in making filtration determinations and the commitment
shown by most States in making conscientious determinations makes it unlikely that the Regions will
seek to change many State filtration determinations. In some cases, however, changing a State
determination may be appropriate. Regions that had considered using 40 CFR 142.80 to review a State
filtration determination may now choose to use their status as the primacy agent to make the filtration
determination. If the Region believes that it may be appropriate to change a State filtration
determination, then the Region should initiate review procedures, similar to those that would be used for
a formal review under 40 CFR 142.80. The Region should, at a minimum, inform the system and State
of the review, obtain the avoidance application from the State, give the system the opportunity to submit
any additional information and set a schedule to make the determination.
Solution 5: EPA Administrative Order/Civil Judicial Action
Another option is for the Region to go directly to enforcement. If the Region wished to proceed
with an enforcement action under Section 1414 of the SDWA, EPA would need to base its action on a
currently effective regulation (e.g., the Total Coliform Rule, the Total Trihalomethane requirements, or
the avoidance criteria in the SWT Rule.) Violations of the SWT Regulation's requirement to filter
cannot be incurred until June 29,1993 at the earliest, assuming the determinations were validly made. If
alternative bases of jurisdiction could be found, EPA could file a judicial action, or pursue an
administrative action, in accordance with our June 26,1992 "Guidance on Enforcement of the
Requirements of the Surface Water Treatment Rule." If EPA decided to proceed administratively, EPA
would then, in the "findings" section of a Proposed Administrative Order (PAO) find: (1) the system in
violation of a currently effective regulation; and (2) that filtration is the appropriate remedy. The order
section would contain the requirement to filter, a schedule, and other items consistent with our June 26,
1992 guidance on enforcement of the SWT Rule.
Opportunity for public hearing would be covered by the opportunity granted with every PAO.
EPA would move to a Final Administrative Order as quickly as possible.
Scenario 3: Filtration determinations made by States and Regions that did not provide notice
and opportunity for public hearing
In scenario 3, the critical fact is that an opportunity for a public hearing on the filtration
determination was not provided as required by Section 1412(b)(7)(C)(ii) of the SDWA. The solution to
this procedural deficiency will depend on whether or not the determination was made with adequate
authority.
Attachment 1 (Final Guidance) - November 1992
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If the filtration determination was made with adequate authority (i.e., the State had adopted the
regulation and primacy revision had been approved) then the State should send a letter to the owner or
operator of the system informing them that they have an opportunity to request a hearing on the
determination. Such a letter should specify:
- Any request should be in writing within a certain number of days (we suggest 14);
- A request for a hearing does not stay the determination itself or the date by which
filtration is required. The letter should provide, however, that if the original date is
declared invalid for any reason, a new determination is being made in the letter.
If the determination was made without adequate authority and so the State or the Region is
reaffirming the determination, then the opportunity for a hearing should be spelled out in the document
reaffirming or ratifying the determination. (See the attached sample letters.)
In any event, so as to insure that the public is notified of the filtration determination and of their
opportunity to request a hearing, a notice of the determination should be published in the local
newspaper or should be posted in a conspicuous place in the community.
A public hearing may cover more than one filtration determination. Regions may combine all
those in a given geographic area and hold only one hearing. Also, a public hearing should only be
conducted in response to a substantive request. A substantive request for public hearing could involve
presentation of new data or data that was overlooked by the State in making their determination. Of
course the region may also wish to hold a public hearing if a large number of requests are received, even
if no legitimate reason for holding a hearing is given.
Public hearings requested on filtration determinations are information gathering only; they are
not adjudicatory. Regions should use the procedures outlined in guidance and regulations for requesting
and holding hearings in conjunction with proposed administrative orders. The regulations are in 40 CFR
142 Subpart J. A copy of the guidance on this issue is attached for your reference.
States with a mandatory filtration requirement are considered to have provided an opportunity for
public hearing in the process of promulgating the State regulation. Therefore, notice and opportunity for
public hearing is not required in States with regulations that require all surface systems to filter.
Scenario 4: States with a mandatory filtration requirement
States with mandatory filtration requirements need to be looked at carefully. If EPA has not yet
approved their primacy revision application and is not close to approving it, then they should be treated
as all other States under the Scenarios above. In other words, all currently unfiltered surface water
systems in the State should receive a letter that reaffirms the State requirement for them to filter. In the
interest of federal enforceability of the SWT Regulation, all filtration determinations should be
reaffirmed.
Attachment 1 (Final Guidance) - November 1992
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If, however, EPA is close to approving the State's primacy revision application, it is possible to
use that approval process to also approve or reaffirm all State determinations. The Region would do this
when it publishes the notice in the Federal Register of its intent to approve the primacy revision. This
announcement would make it clear that EPA approval of the State's primacy revision package constitutes
approval of filtration determinations for all unfiltered surface water systems in that State.
Attachment 1 (Final Guidance) - November 1992
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Sample Letter Ratifying an Earlier Filtration Determination
Joint EPA-State Letter
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Name of Owner/Operator, Title
Facility Name
Address
Dear [Owner/Operator Name]:
On [insert date] you were formally notified that you were required to filter the surface water
source(s) serving your public water system and that filtration was to be installed by [insert date]. Since
the date of that initial determination [insert whether progress has been made or not].
The purpose of this letter is to reaffirm that original determination and to remind you of the
requirements of the Surface Water Treatment (SWT) rule. Alternatively, in the event the State's initial
determination is declared invalid for any reason, the State and EPA hereby notify you that your water
system has been required to install filtration treatment in accordance with the requirements of 40 CFR
Subpart H [and State regulations as applicable]. The drinking water programs at both the federal and
State levels are working in close cooperation in this matter as we consider filtration one of the most
positive steps you, as the water supplier, can take to protect the health of your consumers. [IF
APPLICABLE:] We encourage you to continue your progress towards the installation of filtration in
your system and towards full compliance with the SWT rule.
[IF NOTICE OF OPPORTUNITY FOR PUBLIC HEARING WAS NOT PREVIOUSLY
GIVEN:]
You have the right to request a public hearing on this determination. EPA or the State may also
conduct a public hearing if there is sufficient public interest to justify such a hearing. If you wish to
request a public hearing, please submit a written request to [insert appropriate contact]. This request
must be postmarked no later than fourteen days from the date of this letter.
Should you have any questions, please contact [insert appropriate State/Regional contacts]. We
urge your prompt attention to this important matter and appreciate your continued cooperation.
Sincerely yours,
[State Director]
[EPA Official]
Attachment 1 (Final Guidance) - November 1992 10
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Sample Letter Ratifying an Earlier Filtration Determination
EPA Letter
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Name of Owner/Operator, Title
Facility Name
Address
Dear [Owner/Operator Name]:
On [insert date] you were formally notified by the State of [insert State] that you were required to
filter the surface water source(s) serving your public water system and that filtration was to be installed
by [insert date]. Since the date of that initial determination [insert whether progress has been made or
not].
The purpose of this letter is to reaffirm your State's original determination and to remind you of
the requirements of the Surface Water Treatment Rule (SWT) rule. Alternatively, in the event the State's
initial determination is declared invalid for any reason, the State and EPA hereby notify you that your
water system has been required to install filtration treatment in accordance with the requirements of 40
CFR Subpart H. EPA considers filtration one of the most positive steps you, as the water supplier, can
take to protect the health of your consumers. We are working with your State office to insure the
effective implementation of this rule. [IF APPLICABLE:] I encourage you to continue your progress
towards the installation of filtration in your system and towards full compliance with the requirements of
the SWT rule.
[IF NOTICE OF OPPORTUNITY FOR PUBLIC HEARING WAS NOT PREVIOUSLY
GIVEN:]
You have the right to request a public hearing on this determination. EPA may also conduct a
hearing if there is sufficient public interest to justify a hearing. If you wish to request a public hearing,
please submit a written request to [insert appropriate contact]. This request must be postmarked no later
than fourteen days from the date of this letter.
Should you have any questions, please contact [insert appropriate State/Regional contacts]. I
urge your prompt attention to this matter and appreciate your continue cooperation.
Sincerely yours,
[EPA Official]
Attachment 1 (Final Guidance) - November 1992 11
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REMAKING FILTRATION DETERMINATIONS
RESPONSE TO REGIONAL COMMENT
Region I wrote that a State enforcement action should, in some cases, be allowed to take the
place of re-making a filtration determination.
While we agree that, in some circumstances, a State enforcement action could reduce the need to
re-make a filtration determination, it could not take the place of re-making a determination. It is
possible that a city might sign a consent agreement and proceed with construction according to the
agreement, but later, due to a change in local priorities, remove funding and stop construction. The State
may, hi such an eventuality, refer the case to the region. If the determination had not been re-made, the
region would not be able to enforce until they had made a "must filter" determination and waited
eighteen months for the water system to incur a treatment technique violation. We advise the regions to
proceed with caution if they decide to exempt any water systems from the process of re-making
determinations.
Region I pointed out that States with a SWT rule that requires filtration had effectively given
notice and opportunity for public hearing in the process of promulgating their regulation.
We agree and have included this information in the guidance under scenario 3.
Region II made comments during the early development of this guidance. We believe that all
Regional comments were included in the draft guidance.
Region III submitted a series of comments that centered on the resource demand for re-making
filtration determinations.
We understand that re-making filtration determinations could be resource intensive. However,
we reemphasize the importance of safeguarding the federal enforceability of these determinations.
Under solution 2 we discuss how. resources required to remake these determinations can be minimized.
Also, hi some cases, the regions may be able to make use of a headquarters contractor to perform a mass
mailing. These determinations must be re-made!
12
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Region VI pointed out that we have approved many primacy revision applications for the SWT
regulation that did not include provision for notice of opportunity for public hearing. Some States may
believe that it is inappropriate for them to give notice and would prefer for EPA to do so.
We understand the concern and would support regions that chose to give notice for the water
systems.
In a follow-up concern, the region stated that an EPA public hearing would not support
enfbrceability of the filtration determination in the State.
We agree, but point out that the purpose of the hearing is to ensure federal enforceability. If the
determination is already enforceable at the State level, it may be appropriate in some cases for EPA to
take a leading role in conducting the public hearing.
Region VIII commented that the guidance does not address States with conditional approvals or
rejections of applications for revised primacy.
States with conditional approvals or rejections of applications for revised primacy have not had
primacy approved by EPA. A State does not have primacy for a new regulation until EPA has published
a notice of intent to revise primacy in the Federal Register and the 30 day comment period has expired.
(See 40 CFR 142.13 (f) & (g).) Unless primacy has been officially approved by EPA, the State fits into
scenarios 1 or 2.
Region VIII also brought up the issue of ground water under the direct influence of surface
water.
We agree with the region that unless the State has primacy for the SWT rule, the region and State
should co-sign all filtration determinations, including those made for systems with sources that are
ground water under the direct influence of surface water. Also, the Region should co-sign any notice of
opportunity for public hearing until the State has formally incorporated the requirement for the hearing
into their regulations.
Region IX commented that they understood the guidance and are pursuing the most cost effective
methods to implement it.
Region X commented that we had not explained the circumstances under which public hearings
should be granted.
We have included a short explanation under scenario 3.
13
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG73
Date Signed: December 1992
Final Comprehensive State Ground Water Protection Program Guidance
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
100-R-93-001
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 75
Date Signed: April 8,1993
MEMORANDUM
SUBJECT: Guidance on Section 1 of the Civil Justice Reform
Executive Order No. 12778
FROM: Robert Van Heuvelen
Acting Deputy Assistant Administrator
TO: Regional Counsel, Regions I - X
Enforcement Counsel
Attached is the Office of Enforcement's Guidance on Section I of the Civil Justice
Reform Executive Order No. 12778. This Guidance reflects the comments of the Enforcement
Counsel, Regional Counsel and the Environmental Enforcement Section of the Justice
Department's Environment and Natural Resources Division.
Please direct any questions with respect to this Guidance to my Special Assistant Linda
Breggin. She can be reached at (202) 260-4 931.
Attachment
cc: John Cruden
Howard Corcoran
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WSG 75
GUIDANCE ON SECTION 1 OF THE CIVIL JUSTICE REFORM
EXECUTIVE ORDER NO. 12776
The following is the Office Of Enforcement's (OE) Guidance on the implementation of
Section I of the Civil Justice Reform Executive Order ("Executive Order") entitled "Guidelines
to Promote Just and Efficient Government Civil Litigation." Only those Subsections of Section 1
that impact on the procedures to be followed in processing cases and case referrals in affirmative
Environmental Protection Agency (EPA) enforcement cases handled by OE and the Offices of
Regional Counsel are addressed in this Guidance. This Guidance does not govern administrative
actions which are covered by Section 3 of the Executive order. This OE Guidance on Section 1
of the Executive order should be used as a supplement to the Guidance issued by the Department
of Justice (DOJ).1
I. Section If a): Pre-filing Notice of a Complaint
Section l(a) requires that prior to the filing of a complaint either litigation counsel2 or the
referring agency must make a "reasonable effort" to notify the disputants about the nature of the
dispute and attempt to achieve settlement.
DOJ's Guidance provides that if pre-filing settlement efforts by government counsel
require information in the possession of proposed defendants, litigating counsel or client agency
counsel may request such information from defendants as a condition to settlement efforts.3 If
proposed defendants refuse or fail to provide such information upon request within a reasonable
time, counsel shall have no further obligation to attempt to settle the case prior to filing.
As described below in further detail, OE encourages Regional Counsel to provide notice
and attempt to achieve settlement with proposed defendants. In the event, however, that notice is
not given prior to referral, DOJ will provide t-he notice and make attempt to achieve settlement.
1 See DOJ Memorandum of Guidance on Implementation of the Litigation Reforms of
Executive Order No. 12778. 58 Fed. Reg. 6,015 (Jan. 25,1993).
2 For purposes of this Guidance, it is assumed that Agency attorneys do not serve as
litigation counsel except in cases that are part of the Pilot Program. OE may issue additional
guidance on the Executive order in the event that an Agency attorney becomes litigation counsel
due to DOJ's failure to file a complaint within a reasonable time, as set out in Section 9 of the
Memorandum of Understanding Between DOJ and EPA.
3 OE encourages its attorneys to request information regarding a defendant's ability to pay
inappropriate cases.
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The Procedures outlined below should be followed by OE Headquarters and Regional
attorneys (herein referred to collectively as "attorneys") in implementing Section l(a) of the
Executive Order.
A. Exceptions to Notice Requirements:
Attorneys should ensure that the exceptions to the pre-filing notice requirements, which
are set out in Section 7(b) of the Executive Order, do not apply. A check list is attached
hereto which contains the six circumstances under which pre-filing notice is not required.
This check list should be used in each case before providing notice to a proposed
defendant, and should be maintained in the case file. In brief, the circumstances under
which notice is not required are as follows:
1... In actions to seize or forfeit assets subject to forfeiture or in actions to seize
property;
2. in bankruptcy, insolvency, conservatorship, receivership, or liquidation
proceedings;
3. in actions in which the assets that are the subject of the action or the assets that
would satisfy the judgement are subject to flight, dissipation, or destruction;
4. in actions in which the defendant is subject to flight;
5. in actions in which "exigent circumstances make providing such notice
impracticable .or such notice would otherwise defeat the purpose of the litigation,
such as in actions seeking temporary restraining orders or preliminary injunctive
relief;
6. "in those limited classes of cases where the Attorney General determines that
providing such notice would defeat the purpose of the litigation."
A. Pre-referral Negotiation ("PRN") Policies
The Agency has issued two PRN policies. See memorandum from James M. Strock and
Don R. Clay on Pre-Referral Negotiation Procedures for Superfund Enforcement Cases
dated October 12,1990; Memorandum from Thomas L. Adams, Adams, Jr. entitled
"Process for Conducting Pre-Referral Settlement Negotiations on Civil Judicial
Enforcement Cases, (memo transmits Agreement between EPA and DOJ on the Process
for Conducting Settlement Negotiation) dated April 13,1988.
1. In order to satisfy the notice requirements of the Executive order, Regional
Counsel may opt to follow existing PRN policies. The time frames set out in the
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WSG75
PRN Policies should be strictly followed. The pre-filing notice and .settlement
requirements of the Executive Order are met when PRN is pursued but fails to
result in the settlement of a case.
2. In the alternative, the streamlined notice procedures outlined in Section D below
may be followed in routine cases, in order to comply with the pre-filing notice and
settlement requirements of Section 1 (a) of the Executive Order.
a.. However, PRN procedures must be followed, rather than the streamlined
procedure, if the PRN Policies provide that formal P RN is mandatory.
See, e.g.. October 12,1990 Policy ("procedures are hereby required for all
judicial settlements providing for privately-financed remedial activities").
C. ', .Statutorily Required-Notice
For those cases that are governed by a law or regulation that contains requirements with
respect to notice or settlement negotiations, attorneys should adhere to the procedures set
out in the governing statutory or regulatory provisions. See, e^g,, Section 122(e) of
CERCLA, 42 U.S.C. §9622(e).4
D. Notice Procedures
The following notice procedures should be followed in those routine cases5 in which the
Regional Counsel determined that PRN procedures will not be followed and that there are
no applicable statutory notice provisions.
1. OE recommends, in the interest of expediting the filing of enforcement cases, that
Regional counsel provide notice and attempt to reach settlement with Potential
defendants.6 If a Regional Counsel elects to provide the requisite notice, notice
4 In those cases in which the governing statute requires that the State be named as a party
even though the State is not the real party in interest, notice does not need to be given to the
State because the State lacks the authority to settle the case. See Section 309(e) of the Clean
Water Act, 33 U.S.C. § 1319(e).
5 Routine cases are those cases which: 1) raise no issues of first impression; 2) are single
media cases; 3) seek penalties where the statutory maximum is under $1 million; 4) can be
referred directly to DOJ rather than through Headquarters. See GM-69, "Expansion of Direct
Referral of Cases to the Department of Justice," January 14,1988.
6 In order to expedite coordinated filing, OE strongly encourages the Regional Counsel to
provide notice in cases that are part of cluster filings or initiatives.
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should be provided as soon as possible. Cases should not be referred to DOJ until
notice and the attempt to achieve settlement have been completed. If a Regional
counsel defers to DOJ and does not provide notice prior to the time of referral, the
Agency's interests will be best served if notice is given by DOJ as expeditiously as
practicable after referral, and in a time frame consistent with the Memorandum of
Understanding between EPA and DOJ.
2. In providing notice, Regional Counsel should inform the proposed defendant that
it must advise EPA in writing within 14 days that it desires to enter into a
. settlement and the precise terms of its offer. See attached model notice letter. In
the event that the proposed defendant does not avail itself of this opportunity, the
case must be referred to DOJ.
3. As early as possible in the negotiation process, potential defendants should be
presented with a draft consent decree which conforms to all applicable national
standards and guidance, and which sets out the terms of a settlement. OE will
develop, in consultation with Regional and Program offices, model-consent
decrees which should be used to the extent possible. Consent decree terms not
previously approved by EPA and DOJ should be approved by Enforcement
Counsel, in consultation with the appropriate Assistant Section Chief at DOJ.
4. OE will respond to Regional requests for approval of bottom line penalty
amounts and settlement positions within 35 calendar days of receiving the
requests. Regional requests should include a full description of the defendant,
violations, evidence relied upon, law, injunctive relief, and economic benefit and
gravity penalty analyses. A copy should also be forwarded to the appropriate
Assistant Section Chief at DOJ.
5. Regional Counsel or Enforcement Counsel should make telephonic contact with
the appropriate Assistant Section Chief at DOJ, in an effort to seek informal
concurrence on the Agency's proposed settlement positions. DOJ non-
concurrence should be promptly reported to OE for final resolution.
6. If a settlement'in principle is reached within 30 days of the first meeting with the
potential defendant, the Regional Counsel may grant the litigation team an
additional 45 days within which to reach agreement on the final terms of the
Consent Decree. If necessary, Regional Counsel may extend, with the
concurrence of the Director of Civil Enforcement, the settlement period for up to
30 additional days. Agreements in principle should be promptly reported to DOJ.
7. If a final settlement is not reached within the designated time period, the case
must be referred to DOJ. All settlements are subject to approval of the Assistant
Administrator for Enforcement and/or the Assistant Attorney General for the
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Environment and Natural Resources Division at DOJ, per the applicable
settlement delegations. Complaints should be filed as expeditiously-as possible
after pre-filing negotiations with proposed defendants have failed, and hi a time
frame consistent with the Memorandum of Understanding between EPA and DOJ.
8. If a case is referred to DOJ, the following information regarding compliance with
the Executive order must be provided in the litigation report:
a. Specific considerations that make it unreasonable or unnecessary under the
Executive Order to engage hi pre-filing negotiations;
b. Documentation of any notice and achieve settlement, including copies of
the notice letters, and the terms of any settlement offers;
c. Descriptions of any consultations with, or concurrences from, OE or DOJ
regarding proposed settlement positions;
d. The Agency's specific recommendations for injunctive, monetary
(including economic benefit of non-compliance), or other relief and a
statement of the Agency's minimum settlement requirements (including
pollution prevention, audit or other "SEP-type" relief), based on the
infbrmation available at the time of referral.
II. Section ICbV. Settlement Conferences
Section l(b) requires litigation counsel to evaluate settlement possibilities and make
reasonable efforts to reach settlement throughout litigation. In order to assist DOJ in complying
with the Executive Order and to expedite filing and resolution of civil complaints, attorneys
should coordinate through the appropriate management structure including through the Regional
Counsel and the appropriate OE Enforcement Counsel, to develop initial settlement positions, as
well as to provide periodic updates to DOJ on the Agency's settlement positions. These updates
should set out the Agency's desired relief and minimum settlement requirements.
III. Section l(c): Alternative Methods of Resolving Dispute in Litigation
Section l(c) provides that -in situations in which the use of an alternative dispute
resolution (ADR) technique may contribute to the prompt, fair and efficient resolution of a
dispute, litigation counsel, in consultation with the referring agency, should suggest the use of an
appropriate ADR technique to private parties. Section l(c) does not apply to any action to seize
or forfeit assets subject to forfeiture, or to any debt Collection cases (including any action for
civil penalties and taxes) involving an amount in controversy less than $100,000. In addition,
although authorizing the use of arbitral techniques, the Executive Order prohibits the use of
binding arbitration or any other equivalent ADR technique.
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In order to comply with this requirement, attorneys should include in the litigation reports
that accompany all referrals to DOJ the following information:
1) Identification of any ADR technique(s) that have been used or proposed by the
Agency or proposed defendants to attempt resolution of the dispute prior to
referral;
2) Description of the status of any ADR used;
3) An identification of ADR technique(s) if any, Agency believes may be useful in
attempting to resolve the dispute either before or after the filing of a complaint.
See Final Guidance on Use of Alternative Dispute Resolution Techniques in
Enforcement Actions (August 14,1987); Arbitration Procedures for Small
Superfund Cost Recovery Claims (54 Fed. Reg. 23,174 (1989)); and related
policy statements.
IV. Section l(d)(l): Disclosure of Core Information
Section l(d)(l) requires litigation counsel, under certain circumstances, to make
reasonable efforts to arrange with other parties for a mutual exchange of a disclosure statement
containing core information relevant to the dispute. Core information is defined as "the names
and addresses of people having information that is relevant to the proffered claims and defenses,
and the location of documents most relevant to the case." Core information should not be
disclosed in cases while a dispositive motion is pending. In addition, Section l(d) does not apply
to any action to seize or forfeit assets subject to forfeiture, or to any debt collection cases
(including any action for civil penalties and taxes) involving an amount in controversy less than
$100,000. DOJ's Guidance explains that litigation counsel "should emphasize that the
government is willing to be bound to exchange core information as defined in the section if, and
only if, other parties agree to disclose the same core information and the court adopts the
agreement as a stipulated order."
DOJ's Guidance provides that referrals to DOJ from the Agency should include core
information. The identification of the location of the documents should be specific enough to
enable litigation counsel to locate and retrieve the documents, and should specify the name,
business address and telephone number of the custodians of the documents. The identification of
people having information that is relevant to the claims and defenses should include, if possible,
last known telephone numbers. The Guidance provides that JTJitigation counsel is entitled to rely
in good faith on the representations of agency counsel as to the existence, extent, and location of
core information."
DOJ's Guidance further states that in those cases in which the scope of judicial review is
limited to the agency's administrative record, it is sufficient to provide the location of the
administrative record and afford defendants access to the record. SeeT e_.g» Section 113(j) of
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CERCLA 42 U.S.C. § 9613(j) (judicial review of remedy decision limited to the administrative
record compiled by EPA).
The Executive Order and DOJ Guidance confirm the requirements of the Agency's Model
Litigation Report which already requires attorneys to include core information in every litigation
report. See Model Litigation Report §§ 12e and 12f.
V. Section I (d)(2): Review of Proposed Document Requests
Section l(d)(2) requires agencies that serve as litigation counsel to establish a coordinated
procedure for the conduct and review of document discovery in federal civil judicial litigation.
The Executive order requires that the procedure include review by a senior lawyer prior to
service or filing of the request to determine "that the request is not cumulative or duplicative,
unreasonable, oppressive, unduly burdensome or expensive, taking into account the requirements
of the litigation, the amount in controversy, the importance of the issues at stake in the litigation,
and whether the documents can be obtained from some other source that is more convenient, less
burdensome or less expensive."
In order to meet the requirements of Section l(d)(2) of the Executive Order, litigation
reports that accompany civil judicial referrals to DOJ should include a list of the documents, or
the categories of documents, that are relevant to the case and that are in EPA's possession. In
addition, attorneys should assist DOJ, if requested, in reviewing proposed document requests to
verify that the documents sought from the opposing parties are not available from EPA or
another convenient source.
VI. Section l(e): Expert Witnesses
Section l(e) requires that litigation counsel refrain from presenting expert testimony from
experts who base their conclusions on explanatory theories that are not widely accepted.
"Widely accepted" theories are defined as those theories that are "propounded by at least a
substantial minority of the experts in the relevant field." Section l(e) further requires that
litigation counsel present testimony "only from those experts whose knowledge, background,
research, or other expertise lies in the particular field about which they are testifying." Section
l(e) also provides for the mutual disclosure of information regarding experts that the parties
expect to call as expert witnesses at trial. Finally, Section l(e) bans the use of contingency fees
for expert witnesses.
DOJ's Guidance clarifies that expert testimony on newly emerging issues is permissible.
It only the theory relied upon by the expert that must be widely accepted, rather than the
conclusion reached by the expert. Accordingly, the Guidance explains: "litigation counsel may
offer expert testimony that uses a widely accepted explanatory theory to support a conclusion in a
novel area based on the qualifications of the expert to testify on that issue, the extent of peer
acceptance or recognition of the expert's past work hi the field, particularly of any work that is
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related to the issue on which the testimony is to be offered, and any other available indicia of the
reliability of the proffered testimony."
The litigation reports accompanying all case referrals to DOJ that involve expert
testimony on behalf of the government, or for which EPA recommends an expert for the pending
litigation, should include the following information to the extent that it available at the time of
referral:
1) a description of the general and specific qualifications of any expert who is
expected to testify;
2) if an expert has been retained, the relation of the expert's particular field of
expertise to the issues on which his or her testimony will be offered;
3) if an expert has been retained, a statement noting the degree of acceptance of the
theories on which the expert is expected to rely among experts in the relevant field
(i.e.. whether the expert's theories are "widely accepted");
4) if an expert has been retained, a statement clarifying whether the expert's
expected testimony will involve any new or controversial theories, or unsealed
issues of science, engineering, or other disciplines, including but not limited to
unsettled issues regarding risk assessment, innovative technology, or economic
analysis;
5) if an expert has been retained, citations to relevant literature and studies, or peer
review analysis, supporting or opposing the theories of the anticipated expert
testimony.
VII. Section l(gX^): Improved Use of Litigation Resources
Section l(g)(4) requires litigation counsel to make reasonable efforts to expedite civil
litigation in the cases to which they are assigned including, inter alia: 1) making reasonable
efforts to negotiate with other parties about, and stipulate to, facts that are not in dispute; and 2)
moving for summary judgment in every case where the movant would be likely to prevail or
where the motion is likely to narrow the issues be tried.
DOJ's Guidance provides for referring agencies to identify facts not in dispute and inform
litigation counsel of the lack of dispute and the basis of concluding that there is no factual
dispute, as soon as it is feasible to do so.7
7 The Agency's Model Litigation Report, Section 12c, already requires that attorneys
indicate if a case has potential for summary judgement and, if so, to describe why, and how the
case can be prepared for filing.
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Accordingly, in preparing litigation reports, attorneys should make sure to include the
information required by DOJs Guidance. To the extent possible, the following should be
included in all litigation reports:
1) a list of all relevant and material facts that the attorneys believe are unlikely to be
disputed and which fact simulations would be appropriate;
2) a list of any issues on which the attorneys believe the United States could win
summary judgment.
In the event that an attorney receives additional information regarding facts not in dispute, the
attorney should notify litigation counsel as soon as possible.
VIII. Purpose and Use of This Guidance
This Guidance and any internal procedures adopted for its implementation are intended
solely as guidance for employees of the United States Environmental Protection Agency. They
do not constitute rulemaking by the Agency and may not be relied upon to create a right or
benefit, substantive or procedural, enforceable at law or hi equity, by any person. The Agency
may take action at variance with this Guidance or its internal implementing procedures.
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Attachment 1
MODEL NOTICE LETTER
PRIVILEGED AND CONFIDENTIAL - FOR SETTLEMENT PURPOSES ONLY
Ms. Mary Smith
General Counsel
XYZ Corporation
1200 Broadway
New York, New York
Re: XYZ Chemical Facility, Brooklyn, N.Y.
Dear Ms. Smith:
You are hereby notified that the Environmental Protection Agency (EPA) has identified
your company has violated/is in violation of the Clean Water Act. Accordingly, it is our intent to
refer this matter to the Department Of Justice for appropriate enforcement action in the
applicable U.S. federal district court. Specifically, the EPA believes that XYZ Company has
violated the Clean Water Act and you should immediately refrain from unpermitted discharges
from the XYZ Chemical facility in Brooklyn,.N.Y. into New York Harbor. [Give specifics,
including dates of offenses. Note, supplemental environmental projects should not be included at
this stage].
We would like to extend to the opportunity to settle this matter before litigation, to save
both your company and the federal government the burden and expense of litigation. Any
settlement,, of course, must include the company's agreement to cease its unpermitted discharges
and comply with the injunctive relief we are seeking, specifically [describe, if appropriate]. In
addition, we will be seeking an appropriate amount of civil penalties for the alleged violations.
In that regard, you should note that EPA believes XYZ company has committed 37 violations of
the federal permit, for which the statutory penalty is $25,000 per day. [Stating the statutory
maximum does not require advance coordination with the Department of Justice of the Office of
Enforcement - however, any specific dollar amount requires advance approval of both offices].
Any settlement must be in the form of a consent decree entered in federal district court, to
be filed simultaneously with the governments complaint in this action. [Optional alternative,
where appropriate: In order for us to determine an appropriate resolution of this matter, we will
need additional information from XYZ Company. Accordingly, your settlement response should
express a willingness to provide the additional information, specifically J.
If you are willing to make the required commitments to settle this case before litigation,
please advise the undersigned immediately. Your response must be in writing and include a
specific settlement offer that is responsive to the government's settlement requirements outlined
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above. [Optional: be prepared to complete settlement negotiations within 2 weeks from the date
you receive this letter]. Any settlement agreement we enter will be contingent upon the approval
of the Assistant Administrator for Enforcement, EPA, and the final settlement authority of the
Assistant Attorney General, Environment and Natural Resources Division, Department of
Justice.
If we do not receive what we characterize to be a good faith settlement offer from you
by , we will proceed to immediately refer this matter to the Department of Justice
for their action. Thank you very much for your prompt attention to this important matter.
Sincerely,
Joseph White
Assistant Regional Counsel
cc: Mary Matthews, EPA, Office of Enforcement
Gerald Hobson, EES, Department of Justice
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Federal Register/Vol. 58, No. 14/Monday, January 25,1993/Notices
pp. 6015-6019
Office of the Attorney General
[Order No. 1658-93]
Memorandum of Guidance on
Implementation of the Litigation Reforms of
Executive Order No. 12778
AGENCY: Department of Justice
ACTION: Notice.
SUMMARY: This notice promulgates a
memorandum providing guidance to Federal
agencies regarding the implementation of
those provisions of Executive Order No.
12778 (Order) that concern the conduct of
civil litigation with the United States
Government, including the methods by
which attorneys for the government conduct
discover, seek sanctions, present witnesses at
trial, and attempt to settle cases. The Order
authorizes the Attorney General to issue
guidelines carrying out the Order's
provisions on civil and administrative
litigation.
EFFECTIVE DATE: This action is
effective on January 25,1993.
FOR FURTHER INFORMATION
CONTACT: Jeffrey Axelrad, Director,
Torts Branch, Civil Division, Department of
Justice, 601 "D" street NW., Washington,
DC 20004-2904 (mailing address:
Benjamin Franklin Station, P.O. Box 888,
Washington, DC 20044). (202)501-7075.
SUPPLEMENTARY INFORMATION:
Executive Order No. 12778 (56 FR 55195,
October 25,1991), which President Bush
signed on October 23,1991, is intended to
"facilitate the just and efficient resolution of
civil claims involving the United States
Government 56 FR 55195. The Order,
inter alia, mandates reforms in the methods
by which attorneys for the government
.conduct discovery, seek sanctions, present
witnesses at trial, and attempt to settle case's.
These reforms apply to litigation begun on or
after January 21,1992.
The Order requires agencies to implement
civil justice reforms applicable to each
agency's ciyjj litigation. It provides, in
sections 4(a), 4(b) and 7(d), that the Attorney
General has both the duty to coordinate
efforts by Federal agenciestoimplement the
litigation process reforms and the authority
to issue further guidelines implementing the
Order, and to provide guidance as to the
scope of the order.
Preliminary guidelines were issued as
interim direction for applying the Order. A
Memorandum of Preliminary Guidance on
Implementation of the Litigation Reforms of
Executive Order No. 12778 (Memorandum
of Preliminary Guidance) was signed on
January 24,1992 and has been published in
the Federal Register. 57 FR 3640 (January
30,1992). Agencies were requested to
provide comments concerning their
experience in carrying out the Order and
their recommendations for revising the
.preliminary guidance. Numerous helpful
comments have been received from agencies,
United States Attorneys, and other persons
and organizations.
The present Memorandum has been
prepared after consideration of comments
and in the light of experience to date under
the Order. This Memorandum incorporates
much of the prior Memorandum of
Preliminary Guidance. In addition, the'
present Memorandum also includes
elaboration on matters included in the
Memorandum of Preliminary Guidance and
additional guidance and direction. In
particular, additional commentary has been
included in the discussion of sections l(a),
l(b), l(c), l(d)(l), l(c) and 3 of the Order,
and in the text pertaining to exclusions from
the Order. Thus, the present Memorandum
supersedes the prior Memorandum of
Preliminary Guidance and should be utilized
in lieu of that earlier Memorandum.
During the relatively brief period since
the January 21,1992 effective date of the
Order, it has not been possible to assess fully
the impact of reforms in the Order as
initiated. Therefore, further guidance may be
developed in light of experience. Comments
on implementation of the Order continue to
be welcomed.
By virtue of the authority vested in my by
law, excluding Executive Order No. 12778,1
hereby issue the following Memorandum:
Department of Justice Memorandum of
Guidance and Implementation of the
Litigation Reforms of Executive Order No.
12778
Introduction
Executive order No. 12778, which
President Bush sighed on October 23,1991,
is intended to "facilitate the just and efficient
resolution of civil claims involving the
United States Government. 56 FR 55195,
October 25 1991. The Order, inter alia,
mandates reforms in the methods by which
attorneys for the government conduct
discovery, seek sanctions, present witnesses
at trial, and attempt to settle cases. These
reforms apply to litigation begun on or after
January 21,1992.
The Order authorizes the Attorney
General to issue guidelines carrying out the
Order's provisions on civil and
administrative litigation.
The present Memorandum provides
guidance for applying the Order's provisions
concerning the conduct of civil litigation
involving the United States Government
Pre-filing Notice of Complaint
[Section I (a)]
The objective of section l(a) of the Order
is to ensure that a reasonable effort is made
to notify prospective disputants of the
government's intent to sue, and to provide
disputants with an opportunity to settle the
dispute without litigation. "Disputants"
means persons from whom relief is to be
sought in a contemplated civil action.
Section I (a) requires either the agency or
litigation counsel to notify each disputant of
the government's contemplated action unless
an exception to the notice requirement (set
forth in section 7(b) of the Order) applies.
The notifying person shall offer to attempt to
resolve the dispute without litigation.
However, it is not appropriate to compromise
litigation by providing pre-filing notice if the
notice would defeat the purpose of the
litigation.
Under section l(a), a reasonable effort to
notify disputants and to attempt to achieve a
settlement may be provided either by the
referring agency in administrative or
conciliation processes or by litigation
counsel. For example, many debt collection
cases and tax cases are the subject of
extensive agency efforts to notify the debtor
and resolve the dispute prior to litigation. If
the referring agency has provided notice, it
should supply the documentation of the
notice to litigation counsel. Such efforts by
the agency may well satisfy the requirements
of section I (a). In those cases, litigation.
counsel need not repeat the notice although
litigation counsel should consider whether
additional notice may be productive, for
example, if a substantial period has elapsed
since the prior notice.
The section requires a "reasonable" effort
to provide notification and to attempt to
achieve a settlement. Both the timing and
.the content of a reasonable effort depend ...
upon the particular circumstances. However,
unless an exception set forth in section 7 of
the Order (or otherwise provided for by the
Attorney General) is applicable, complete
failure to make an effort can not be deemed
"reasonable."
If prc-complaint settlement efforts by
government counsel require information in
the possession of prospective defendants,
litigating counsel or client agency counsel
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may request such information from such
defendants as a condition of settlement
efforts. If prospective defendants refuse, or
fail, to provide such information upon
request within a reasonable time, government
counsel shall have no further obligation to
attempt to settle the case prior to filing.
The Department of Justice retains
authority to approve or disapprove any
settlements proposed by the client agency or
litigation counsel, consistent with existing
law, guidelines, and delegations. The Order
confers no litigating or settlement authority
on agencies beyond any existing authority
under law or explicit agreement with the
Department.
Settlement Conference
>
[Section l(b)]
Section l(b) of the Order requires litigation
counsel to evaluate the possibilities of
settlement as soon as adequate information is
available to permit an accurate evaluation of
the government's litigation position.
Thereafter, litigation counsel has a
continuous obligation to evaluate settlement
possibilities. Litigation counsel is to offer to
participate in a settlement conference or,
when it is reasonable to do so, move the
court for such a conference.
Under section l(b), settlement
possibilities shall be evaluated by litigation
counsel at the outset of the litigation.
Litigation counsel shall thereafter, and
throughout the course of the litigation, use
reasonable efforts to settle the litigation,
including the use of settlement conferences
by offering or moving to do so. However,
the most appropriate timing of a settlement
conference should be determined by
litigation counsel consistent with the goal of
promoting just and efficient resolution of
civil claims by avoiding unnecessary delay
and cost To that end, in keeping with
section l(g) of the Order ("Improved Use of
Litigation Resources"), early filing of
motions that potentially will resolve the
litigation is encouraged. In those cases, -
litigation counsel should initiate settlement
conference efforts after resolution of
dispositive motions, thereby avoiding the
cost and delay associated with an
unnecessary settlement conference.
Prior to any such conference, litigation
counsel should consult with the affected '
agency and with litigation counsel's
supervisor. At the conference, litigation
counsel should clearly state the terms upon
which litigation counsel is prepared to
recommend that the government conclude
the litigation, but should not be expected to
obtain authority to bind the government
finally at settlement conferences. Final
settlement authority is the subject of
applicable regulations and may be exercised
only by those officials designated in those
regulations. The Order does not change
those regulations regarding final settlement
authority.
The Order does not constrain the
government's full discretion to determine
which government counsel represents the
government at settlement conferences.
Normally, a trial attorney assigned to the
case will attend on behalf of the United
States.
Section l(b) does not permit settlement of
litigation on terms that are not in the interest
of the government while "reasonable
efforts" to settle are required, no
unreasonable concession or offer should be
extended. The section does not countenance
evasion of established agency procedures for
development of litigation positions.
Alternative Methods of Resolving the
Dispute in Litigation
[Section I(c)]
Section I (c) of the Order encourages
prompt and proper settlement of disputes.
The section states: "Whenever feasible,
claims should be resolved through informal
discussions, negotiations, and settlements
rather than through utilization of any formal
or structured Alternative Dispute Resolution
(ADR) process or court proceeding."
The order does not permit litigation
counsel to agree that ADR will result in a
binding determination as to the government,
without exercise of an agency's discretion.
Further, the Order's authorization of the use
of ADR does not authorize litigation council
to agree to resolve a dispute in any manner or
on any terms not in the interest of the United
States.
Each agency should seek to use the skills
of litigation counsel, including skills gained
through training, to bring the same high level
of expertise to ADR proceedings that they
bring to formal judicial proceedings.
Disputes will be resolved reasonably if an
ADR technique is used when the technique
holds out a likelihood of success. Litigation
council should consult with the affected
agency as to the desirability of using ADR if
resort to ADR offers a reasonable prospect of
success.
When evaluating whether proceeding
with ADR is likely to lead to a prompt, fair,
and efficient resolution of the action and thus
be in the best interest of the government,
government counsel should consider the
amount and allocation of the cost of
employing ADR.
Normally, the costs associated with ADR,
such as the neutral's fee and related
expenses, will be payable as an ordinary cost
of litigation. Litigation counsel can
voluntarily agree to share the payment of
ADR costs, even when the court mandates
ADR. Litigation counsel should assert
sovereign immunity when costs are
involuntarily imposed on the United States.
Disclosure of Core Information
[Section I(d)(l)]
Section l(d)(l) of the Order requires
litigation counsel, to the extent practicable,
to make the offer to participate at an early
stage of the litigation in a mutual exchange
of "core information" (as defined in section
l(d)(l) of the Order). Reasonable efforts
shall be made to obtain the agreement of
other parties to such an exchange. When
making the offer, litigation counsel should
emphasize that the government is willing to
be bound to disclose core information as
defined in the section if, and only if, other
parties agree to disclose the same core
information and the court adopts the
agreement as a stipulated order.
A mutually agreed-upon exchange of core
information should occur reasonably early in
the litigation, so as to serve the Order's
purpose of expediting and streamlining
discovery. However, when the government
is plaintiff, disclosure of core information
need not be requested prior to receipt of
opposing parties' answers to the complaint.
Litigation counsel should not permit the core
information disclosure offer requirement to
delay the initiation of necessary discovery on
behalf of the government when the parties to
whom the offer is directed have not accepted
it within a reasonable period of time.
Offers to exchange core information are
not mandated if a dispositive motion is
pending or if the exceptions to the ADR and
core disclosure provisions set forth in section
7(c) of the order (involving asset forfeiture
proceedings and debt collection cases
involving less than $100,000) apply.
Nothing in section l(d)(l) requires
disclosure of information that litigation
counsel does not consider reasonably
relevant to the claims for relief set forth in
the complaint
In cases involving multiple opposing
parties, the government may agree to
exchange disclosures of core information
with one or more opposing parties. The
government need not delay disclosure
pending agreement by all of the parties
unless individual exchange of core
information would unfairly undermine the
government's case.
Except when local practice warrants
another means of memorializing the
agreement, and agreement to provide core
information ordinarily should be in the form
of a consent order to ensure enforcement by
the court The consent order should also
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provide for use of the core information in the
same manner as material discovered
pursuant to Rules 26 through 36 of the
Federal Rules of Civil Procedure.
All referrals from agencies requesting
litigation counsel to file suit should include
the core information described in section
l(d)(l) of the Order. The identification of
the location of documents most relevant to
the case should be specific enough to enable
litigation counsel to locate and, if necessary,
retrieve the documents, and should specify
the name, business address, and telephone
number of the custodians of the documents.
The identification of individuals having
information relevant to the claims and
defenses should include, where possible,
current or last-known telephone numbers at
which such persons can be reached.
In determining the extent to which
compliance with the requirements of section
l(d)(I) of the Order is "practicable" in a
given case, litigation counsel shall consider,
Inter alia, the utility of early issue-narrowing
motions and devices, and scope and
complexity of the disclosures that will be
required, the time available to comply with
the provisions of the section, the extent to
which disclosure of core information will
expedite or limit the scope of subsequent
discovery, and the cost to the government of
compliance.
In cases where the government takes the
position that the scope of judicial review of
one or more issues involved in the litigation
is limited to an agency's administrative
record, identifying and affording access to
the administrative record shall satisfy the
requirements of section l(d)(l) with.respect
to such issues.
Litigation counsel is entitled to rely in
good faith on the representations of the
agency counsel as to the existence, extent,
and location of core information.
Nothing in section l(d)(l) prevents
government counsel from seeking other
discovery pursuant to the Federal Rules of
Civil Procedure simultaneously with
providing, or seeking, disclosure of core
information to the section.
Review of Proposed Document Requests
[Section l(d)(2)]
Under section l(d)(2) of the Order,
government council shall pursue document
discovery only after complying with review
procedures designed to ensure that the
proposed document discovery is reasonable
under the circumstances of the litigation.
When an agency's attorneys act as
litigation counsel, that agency must establish
a coordinated procedure, including review by
a senior lawyer, before service or filing of
any request for document discovery. The
senior lawyer is to determine whether the
proposed discovery meets the substantive
criteria of section l(d)(2). Senior lawyers
must be designated within each agency to
perform this review function. While no
particular title, level, or grade of senior
lawyer is mandated, the persons designated
should have substantial experience with
regard to document discovery and should
have supervisory authority. .This designation
should be made forthwith. If the designated
senior lawyer is personally preparing the
"document discovery, further oversite is not
necessary.
The designated senior lawyer reviewing
document discovery proposals should
determine whether the requests are
cumulative or duplicative, unreasonable,
oppressive, or unduly burdensome or
expensive, and in doing so shall consider the
requirements of the litigation, the amount in
controversy, the importance of the issues at
stake in the litigation, and whether the
documents can be obtained in a manner that
is more convenient, less burdensome, or less
expensive that pursuit of the documentary
discovery as proposed. Consideration of
whether documents can be obtained in a
more convenient, less burdensome, or less
expensive manner shall include
consideration of the convenience, burden,
and expense to both the government and the
opposing parties.
In conducting this review of document
requests, the senior lawyer is entitled to rely
in good faith upon factual representations of
agency counsel and the trial attorney. The
review system should not be permitted to
deter the pursuit of reasonable document
discovery in accord with the procedures
established in the Order.
Discovery Motions
[Section l(d)(3)]
Section l(d)(3) of the Order provides that
litigation counsel shall not ask the court to
resolve a discovery dispute, including
imposition of sanctions as well as the
underlying discovery dispute, unless
litigation counsel first attempts to resolve the
dispute with opposing counsel or pro se
parties. If pre-motion efforts at resolution
are unsuccessful or impractical, a description
of those efforts shall be set forth in the
government's motion papers.
Litigation counsel, however, should not
compromise a discovery dispute unless the
terms of the compromise are reasonable.
Expert Witnesses
[Section (l)(e)]
The function of Section l(e) of the Order
is to ensure that litigation counsel proffer
only reliable expert testimony in judicial
proceedings. This practice, already widely
used by the government, will enhance the
credibility of the government's position in
litigation and improve the prospects for a
reasonable outcome of the disputes
warranting utilization of expert witnesses.
Litigation counsel shall use experts who
have knowledge, background, research, or
other expertise in the particular field of the
subject of their testimony, and who base
conclusions on widely accepted explanatory
theories, I.e., those that are propounded by at
least a substantial minority of experts in the
relevant field.
In cases requiring expert testimony on
newly emerging issues, litigation counsel
shall ensure that the proffered expert and his
or her testimony are reliable and meet the
requirements of Rule 702 of the Federal
Rules of Evidence. In evaluating the
reliability of an expert's conclusions in new
areas where there are no established majority
or minority views, it is important for the trial
attorney to keep in mind that, under section
l(e), only the theory, not the conclusion
based on the theory, need be "widely
accepted." Litigation counsel may offer
expert testimony that uses a widely accepted
explanatory theory to support a conclusion in
a novel area, based on the qualifications of
the expert to testify on that issue, the extent
of peer acceptance or recognition of the
expert's past work in the field, particularly of
any work that is related to the issue on which
the testimony is to be offered, and any other
available indicia of the reliability of the
proffered testimony. However, if an expert is
unable to support the conclusion with any
"widely accepted" theories, the expert's
testimony shall not be offered.
Litigation counsel shall offer to engage in
mutual disclosure of expert witness
information pertaining to experts a party
expects to call at trial. "Expert witness
information" within the meaning of section
I(e) of the Order should ordinarily include
the information specified in Rule
26(4)(A)(in) of the Federal Rules of Civil
Procedure, the expert's resumŁ or curriculum
vitae, a list of the expert's relevant
publications, data, test results, or other
information on which the expert is expected
to rely in the case at issue, the fee
arrangements between the party and the
expert and any written reports or other
materials prepared by the expert that the
party expects to offer into evidence.
An agreement to provide expert witness
information should be memorialized in a
consent order, except when local practice
warrants another means of memorializing the
agreement, with the same provisions
concerning enforceability and use at trial are
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as provided in consent order for disclosure of
core information. The requirements to offer
mutual disclosure of expert witness
information can be satisfied by an agreement
to take depositions of experts that the parties
plan to call to testify.
Litigation counsel shall not offer to pay
an expert witness based on the success of the
litigation. Section l(e)(4). Similarly,
litigation counsel should ordinarily object to
testimony on the part of an expert whose
compensation is linked to a successful
outcome in the litigation and should bring
out on cross-examination of the expert such .
compensation arrangements or agreements.
Sanctions Motions
[Section l(fj]
Litigation counsel shall take steps to seek
sanctions against opposing counsel and
parties where appropriate, subject to the
procedures set forth in section l(f) of the
Order regarding agency review of proposed
sanction filings. Before filing a motion for
sanctions, litigation counsel should normally
attempt to resolve disputes with the opposing
counsel. Sanctions motions should not be
used as a vehicle to intimidate or coerce
government counsel or counsel adverse to
the government when dispute can be
resolved on a reasonable basis.
Section l(f)(2) of the Order mandates that
each agency which has attorneys acting as
litigation counsel designate a "sanctions
officer" to review proposed sanctions
motions and motions for sanctions that are
filed against litigation counsel, the United
States, its agencies, or its officers. The
section also requires that the sanctions
officer or designee "shall be a senior
supervision attorney within the agency, and
shall be licensed to practice law before a
State court, courts of the District of
Columbia, or courts of any territory or
Commonwealth of the United States." The
sanctions officer or his or her designee
should be a senior lawyer with substantial
litigation experience and supervisory
authority. By way of illustration, rather than
limitation, a Senior Executive Service level
attorney should meet these criteria
The persons acting as sanctions officers
within each agency should be designated
specifically by title or name. Action shall be
take forthwith to designate sanctions officers
within each agency. Cabinet or subcabinet
officers, such as Assistant Attorneys General
or Assistant Secretaries, officials of
equivalent rank, and United States Attorneys
are authorized pursuant to the Memorandum
to designate sanctions officers meeting the
criteria of this Memorandum.
Improved Use of Litigation Resources
[Section l(g)]
Litigation counsel are to use efficient case
management techniques and make
reasonable efforts to expedite civil litigation
as set forth in section l(g) of the Order.
In appropriate cases, litigation counsel
should move for summary judgement to
resolve litigation or narrow the issues to be
tried. This rule is not intended to suggest
that summary judgement practice should be
used prematurely in a manner which will
permit opposing counsel to defeat summary
judgement.
Litigation counsel should seek to stipulate
to facts that are not in dispute and move for
early trial dates where practicable. Referring
agencies should identify facts not in dispute
and inform litigation counsel of the lack of
dispute and the basis for concluding that
there is no factual dispute, as soon as it is
feasible to do so. Litigation counsel should
seek agreement to fact stipulations as early
as practicable, taking into account the
progress of discovery and after exercising
sound judgement to determine the most
appropriate and efficient timing for such
stipulations.
At reasonable intervals, litigation counsel
should review and revise submissions to the
. court and should advise the court and all
counsel of any narrowing of issues, resulting
from discovery or otherwise.
Fees and Expenses
[Section l(b)]
Section l(b) of the Order provides that
litigation counsel shall offer to enter into a
two-way fee shifting agreement with
opposing parties in cases involving disputes
over certain federal contracts or in any civil
litigation initiated by the United States.
Under such an agreement, the losing party
would pay the prevailing party's fees and
costs, subject to reasonable terms and
conditions. This section is to be
implemented only "(t)o the extent
permissible by law." The section also
requires the Attorney General to review the
legal authority for entering into such
agreement. Because no legislation currently
provides specific authority for these
agreements, litigation counsel shall not offer
to enter into a two-way fee shifting
agreement until legislation is enacted or
other authority is provided by the Attorney
General.
Principles to Promote Just and Efficient
Administrative Adjudications
[Section 3]
Section 3 of the Order encourages
agencies to implement the recommendations
of the Administrative Conference of the
United States, entitled "Case Management as
a Tool for Improving Agency Adjudication"
to the extent it is reasonable and practicable
to do so (and to the extent id does not •
conflict with any provisions of the Order).
The agency proceedings within the ambit of
section 3 are adjudications before a presiding
officer, such as an administrative law judge.
The order does not require the application
of section 1 to such agency proceedings.
However, it has become apparent that
application of the relevant provisions of
section I would have a salutary effect and
would be in concert with the reforms
required by the Order. Agencies are
therefore encouraged to extend the
application of section 1 to agency counsel in
administrative adjudications where
appropriate, for example where an
evidentiary hearing is required by lay, and
where, in agency counsel's best judgement,
such extension is reasonable and practicable.
Exceptions to the Executive Order
The order does not apply to criminal
matters or proceedings in foreign courts, and
shall not be construed to require or authorize
litigation counsel or any agency to act
contrary JcrappKcable law. Sections 7(a) and
8". "'
Attorneys for the Federal Government
are obligated to follow the requirements of.
the Order unless compliance would be
contrary to the law. In the event of an
overlap between the requirements of the
Order and any local rules or court orders,
attorneys for the Federal government are
obligated to comply with both the provisions
of the Order and the provisions of the
applicable rules or court orders.
In section S(a), the Order defines
"agency" to include each establishment
within the definition of "agency" in 28
U.S.C. 41; establishments in the legislative
or judicial branches are excluded. Thus
litigation counsel, including private attorneys
representing the government, and the agency
are subject to the provisions of the Order
even where the agency is considered
"independent" for other purposes. The
President clearly has the authority to
supervise and guide the exercise of core
executive functions such as litigation by
government agencies.
The Order does not compel or authorize
disclusire of privileged information or any
other information the disclosure of which is
prohibited by law. Section 9
Dated: January 15,1993.
Wiliam P. Barr,
Attorney General
[FR Doc. 93-1654 Filed 1-22-93; 8:45 am)
BILLING CODE 4410-01-M
16
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 76
Date Signed: July 23,1993
Revised: June 1,1998
Revised by: Judith Fraser
MEMORANDUM
SUBJECT: Clarification of Lead Service Line Replacement Requirements in Lead Drinking
Water Rule
FROM: James R. Elder, Director (Signed by James R. Elder)
Office of Ground Water and Drinking Water
TO: Drinking Water Branch Chiefs
Regions I - X
This memorandum clarifies the lead service line replacement requirements under EPA's
Lead and Copper Rule. See 40 CFR § 141.84. On June 7,1991, EPA promulgated regulations,
which included a broad definition of "control" as it applies to lead service lines in the distribution
system. The definition presumes that water systems control the entire lead service line unless
proven otherwise. To prove otherwise, a water system must submit a letter to the State
indicating that it does not have any of the following forms of control over the entire line: (1)
authority to set standards for construction, repair or maintenance of the line; (2) authority to
replace, repair, or maintain the service line; or (3) ownership of the service line. In 1991, the
American Waterworks Association (AWWA) challenged EPA's definition of "control", arguing
that systems should not be required to replace lead service lines they do not own and that EPA
substantially changed the definition of "control" without providing an opportunity for public
comment. The Court agreed with AWWA that the Agency had failed to give adequate public
notice that it was considering requiring systems to replace portions of service lines the system
does not own. The Court remanded and vacated the definition of "control" as it applies to
portions of the line beyond a water system's ownership. AWWA v. EPA, 40 F.3d 1266 (D.C. Cir.
1994). Because the Court vacated the rule on this procedural ground, it did not address
AWWA's substantive argument that EPA was without statutory authority to require replacement
of privately owned portions of service lines.
On April 12,1996, EPA published a Proposed Rule, which included a revised definition
of "control" of lead service lines that would obligate water systems to replace the portion of the
line that they own, as well as any additional portion which the system has the authority to
replace, in order to protect the quality of water delivered to the user. See Federal Register, April
12,1996, p. 1634. EPA solicited comments on the proposed rule and then published a Notice of
Data Availability on April 22,1998. A Final Rule is expected to be published by October 1,
1998.
cc: Bob Blanco
Brian Maas
Steve Neugeboren/OGC
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG 77
Date Signed: December 16,1993
MEMORANDUM
SUBJECT: Guidance and Clarification on the Use of Detection Limits in Compliance
Monitoring
FROM: James R. Elder, Director
Office of Ground Water and Drinking Water
TO: Water Management Division Directors
Environmental Services Division Directors
Quality Assurance Officers
Regions 1-10
Several Regions and States have requested guidance and clarification on the use of
detection limits in monitoring of drinking water samples for herbicides, pesticides and other
synthetic organic chemicals (SOCs). The basic concern seems to be that some laboratories are
having difficulty in achieving the detection limits specified in the regulations for some SOCs on
a regular basis. As a result, contaminants may occur in public water systems at detectable levels
even though laboratories report "no detect." Though EPA laboratory certification procedures
specify performance criteria for SOCs, detection levels are not one of these criteria. Therefore,
this guidance suggests an appropriate standard for determining when a finding of "no detect"
should be considered "acceptable" for the purposes of the trigger for decreased monitoring.
In the attachment to this memorandum, EPA is suggesting detection limits that a
laboratory must achieve in order to report an acceptable finding of "non-detect." By listing these
concentrations, EPA affirms that results that may occur below these specified concentrations
should not trigger continuing quarterly monitoring. Though existing regulations do not so
require, results of "no detect" from laboratories that cannot achieve the upper confidence limit of
the detection limits should not relieve the public water systems from the requirement for
quarterly monitoring.
Section 141.24(h)(19) of the regulations provides that analysis for drinking water
contaminants shall only be conducted by laboratories that have received certification from EPA
or the State. At a minimum, certified laboratories are required to satisfy criteria, specifically
relating to precision and accuracy. Laboratory certification requirements do not directly specify
detection limits that laboratories must be able to achieve for herbicides, pesticides and other
SOCs.
Section 141.24 requires that analysis for drinking water contaminants be conducted using
the EPA methods or their equivalents. The approved EPA methods require the laboratories to
use specific quality control procedures. One of the quality control procedures is the initial
demonstration of laboratory capability which includes the determination of detection limit. The
detection limit for a given contaminant by a specific method is associated with an inherent
variability of measurement or a confidence interval. The method for determining is specified in
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WSG 77
40 CAR Part 136 Appendix B. The Appendix includes an explicit procedure for calculating the
lower confidence limit (LCL) and upper confidence limit (UC) based on seven aliquots: The
LCL = 0.64 times the detection limit and the UC = 2.2 times the detection limit. -
In §141.24(h)(18), the Agency specifies detection limits for certain synthetic organic
contaminants. If a public water system detects a contaminant, §141.24(h)(7) provides for
continued quarterly monitoring. Although §141.24(h)(18) specifies detection limits for the
purpose of "detection," EPA inadvertently failed to specify limits for "non-detection."
In addition, these detection limits did not have specific confidence intervals associated
with them, even though these intervals are an essential part of the Part 136 Appendix B
procedure. This memorandum explains that, although the published detection limits in
141.24(h)(18) are the applicable standards for "detection," the UC to the detection limit suggests
an appropriate standard for a finding of "no detect" for those contaminants. By suggesting this
standard, this memorandum does not alter pre-existing legal standards or obligations.
In the attachment, we have listed the detection limits from 141.24(h)(18) as well as the
UCS that are appropriate for those herbicides, pesticides and other SOC analysts. If a regional,
state, utility, or a private laboratory has demonstrated that their detection limit for a specific
analyze, calculated by the Appendix B procedure, falls at or below the UC in the attachment,
they should be considered to have achieved the detection limit for the purposes of reporting an
acceptable finding of "no detect." If the laboratory reports "no detect," then the P.S. would be
relieved from continuing quarterly monitoring pursuant to 141.24(h)(7). Of course, the States do
have the option of enforcing more stringent requirements and are not in any way required to
lessen their own requirements to meet the interpretations in this memorandum. This
memorandum does not affect applicable standards when a laboratory reports "detects" at or
above the detection limits in 141.24(h) (18).
This approach may still pose problems for some laboratories and we urge that you give
the States and utilities as much technical assistance as you can in attempting to achieve the
required detection limits or to use their compliance results as part of a waiver application.
I hope this provides clarification on the use of detection limits in compliance monitoring
of drinking water samples. If you have any questions, please call James M. Conlon, Director,
Drinking Water Standards Division on (202) 260-7575. You may also contact Balded L. Bathija,
Ph.D., Chief, Methods and Monitoring Section, on (202) 260-3040.
Attachment
cc: James M. Conlon, DASD
Robert J. Blanco, ENID
Ramona E. Thrived, GWPD
Alan A. Stevens, T.D.
Frederick F. Stiehl, OE
Susan G. Lepow, O.C.
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ATTACHMENT
WSG77
Analyze
Alachlor
Atrazine
Benzo(a)pyrene
Carbofuran
Chlordane
Dalapon
Dibromochloropropane
Di(2-ethylhexl)adipate
Di(2-ethylhexl)phthalate
Dinoseb
Diquat
2,4-D
Endothal
Endrin
Ethylene dibromide
Glyphosate
Heptachlor
Heptachlor epoxide
Hexachlorobenzene
Hexachlorocyclopentadiene
Lindane
Methoxychlor
Oxamyl (Vydate)
Pentachlorophenol
Picloram
PCBs (as decachlorobiphenyl)
MCLG
mg/L
0.002
0.003
zero
0.04
zero
0.2
zero
0.4
0.006
0.007
0.02
0.07
0.1
0.002
zero
0.7
zero
zero
zero
0.05
-0.0002
0.04
0.2
zero
0.5
zero
MCL
mg/L
0.002
0.003
0.0002
0.04
0.002
0.2
0.0002
0.4
0.006
0.007
0.02
0.07
0.1
0.002
0.00005
0.7
0.0004
0.0002
0.001
0.05
0.0002
0.04
0.2
0.001
0.5
0.0005
FR Detection
Limits
mg/L
0.0002
0.0001
0.00002
0.0009 .
0.0002
0.001
0.00002
0.0006
0.0006
0.0002
0.0004
0.0001
0.009
0.00001
0.00001
0.006
0.00004
0.00002
0.0001
0.0001
0.00002
0.0001
0.002
0.00004
0.0001
0.0001
UCL
mg/L
0.00044
0.00022
0.000044
0.00198
0.00044
0.0022
0.000044
0.00132
0.00132
0.00044
0.00088
0.00022
0.0198
0.000022
0.000022
0.0132
0.000088
0.000044
0.00022
0.00022
0.000044
0.00022
0.0044
0.000088
0.00022
0.00022
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WSG77
Simazine 0.004 0.004
Toxaphene zero 0.003
2,3,7,8-TCDD (Dioxin) zero 0.00000003
2,4,5-TP 0.05 0.05
Aldicarb* (0.001) (0.003)
Aldicarb'sulfoxide* (0.001) (0.004)
Aldicarb sulfone* (0.001) (0.002)
0.00007
0.001 ?
0.000000005
0.0002
0.0005
0.0008
0.0003
CFR
Numbers
0.000154
0.0022
o'.ooooooon
0.00044
0.0011
0.00176
0.00066
New
Suggested
"Non-detect"
*MCLGs and MCLs for these contaminants have been stayed pending further rulemaking.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG78
Date Signed: February 1,1994
MEMORANDUM
SUBJECT: Clarification of Turbidity Requirements for Filtered Systems under the Surface
Water Treatment Rule (SWTR)
FROM: James R. Elder, Director
Office of Ground Water and Drinking Water
TO: Water Management Division Directors, Regions I-X
Environmental Services Division Directors, Regions I-X
This water supply guidance clarifies three issues related to turbidity requirements for
filtered water systems under the SWTR1. Specifically, these are (1) where turbidity samples are
to be collected for filtered water systems, (2) when a system is to notify the State and the public
of high turbidity levels and anticipated turbidity violations, and (3) backwashing practices.
1. Turbidity sampling location for filtered water systems
As specified above, the SWTR requires systems that filter to measure the turbidity level
in representative samples of a system's filtered water. The rule did not specify a more precise
sample location in order to allow for differences in configuration among Public Water Systems
(PWS). Therefore, the rule clearly places the burden on the PWS to determine where to take
'The SWTR established treatment technique requirements for Giardia lamblia. viruses, heterotrophic plate
count bacteria, Legionella. and turbidity. These requirements consist of installing and properly operating water
treatment processes that reliably achieve at least 99.9% (3-Iog) removal and/or inactivation of Giardia Lamblia cysts
and at least 99.99% (4 -log) removal and/or inactivation of viruses (40 CFR 141.70). Further the SWTR established
disinfection requirements in §141.72 and filtration requirements in §141.73. Failure to meet any of the requirements
in §141.70, §141.72, or §141.73 is a treatment technique violation.
NTU.
The turbidity requirements with which filtered systems must comply are contained in §141.73:
- For all systems, the turbidity level of representative samples of filtered water must at no time exceed 5
- F.or systems using conventional or direct filtration, the turbidity level of representative samples of a
system's filtered water must be less than or equal to 0.5 NTU in at least 95% of the measurements taken each month,
measured as specified in §141.74 (a) (4) and (c) (1). The State may substitute a higher level if the State determines
.that the system is capable of achieving at least 99.9% removal/inactivation of Giardia lamblia cysts at some higher
level. The State may not approve a turbidity limit that allows more than 1 NTU in more than 5% of the samples
taken each month.
- For systems using slow sand or diatomaceous earth filtration, the turbidity level of representative samples
of a system's filtered water must be less than or equal to 1 NTU in at least 95% of the measurements taken each
month, measured as specified in §141.74(a)(4) and (c)(l).
1
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WSG78
samples and to ensure that these samples are representative of the quality of the filtered water.
Moreover, any information which the PWS has on turbidity in filtered water must be evaluated
by the PWS to determine if that is representative. If so, then these measurements should be
reported to the State.
Turbidity is an indicator of (1) filtration efficiency for removal of pathogens and other
particles, and (2) the treatability of the water by disinfection. A high turbidity level indicates the
potential for pathogen breakthrough and interference with disinfection efficiency. Unless other
circumstances in the PWS make another locations more representative, turbidity samples for
filtered water systems should be collected immediately after t the confluence of flow from all the
filters, and if possible, before the clearwell. In addition, EPA guidance (SWTR Guidance
Manual, October 1990, Section 4.3.2) recommends that systems regularly monitor the turbidity
level in the water exiting from each filter to isolate problems with individual filter performance.
Failure by a PWS to Perform this monitoring obligation properly (e.g.. choosing sites-that
are not representative of filtered water quality, deliberately reporting data only from those
sampling sites that are known to be under the limits specified in the SWTR) is a violation of
requirements in the SWTR. Moreover, it-could subject the owner/operator of the PWS to
criminal action under Title 18 of the U.S. CodeP that is. deliberately making false statements to
the Federal Government or State primacy agent is a federal criminal offense.
2. Notification bv the PWS of high turbidity levels
The SWTR requires filtered systems to report a number of
items to the State on a monthly basis. These include turbidity measurements, as required by
§141.74(c)(l) and disinfection information specified in §141.74(c)(2) and §141.74(c)(3). The
specific items that must be reported are contained in §141.75(b). These items must be reported
within ten days after the end of each month.
The SWTR also requires filtered systems to report three specific items to the State a§
soon as possible, but no later than the end of the next business day (§141.75(b)(3)). These are: a
waterborne disease outbreak potentially attributable to the water system, any time the turbidity
exceeds 5 Nephelometric Turbidity Units (NTU), and any time the disinfectant residual falls
below 0.2 mg/1 in the water entering the distribution system. (In this third case, the system must
also notify the State by the end of the next business day whether or not the residual was restored
to at least 0.2 mg/1 within 4 hours.)
In addition, anytime a system fails to meet any of the requirements of the SWTR, it incurs
a treatment technique violation. This requires notification to the State in accord with §141.31
and notification to the public in accord with §141.32. Treatment technique violations are
considered non-acute violations and therefore, public notification must be completed as soon as
possible, but hi no case later than 14 days after the violation.
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WSG78
It is important that the standard for reporting to the State and the public be clearly
understood. In both instances, the requirement is to report as soon as possible. This means that
the reporting must be accomplished not within the maximum timeframe allowed by the
regulations but as soon as the system is physically able to do so.
For example, if a large city exceeds 5 NTU on Tuesday at 7:00 a.m., the city should
report that to the State as soon as the State offices open. The notice to the public should be in
that evening's newspaper or, if there is no evening paper, then hi the next day's paper. Note that
the city does not have until the end of the next business day to report to the State nor do they
have 14 days to issue the public notice because it is possible to accomplish both of these items in
less than the maximum time allowed by the regulations. For purposes of reporting to the State,
there are very few instances where that cannot be done almost immediately after the violation
occurs. For purposes of reporting to the public there are very few situations where this cannot
occur within 1-2 days of a violation; an obvious example would be a rural community that is
served only by a weekly newspaper.
Failure by a system to report as soon as possible, even if it is accomplished within the
time allowed by the regulations, is a violation and could subject the system to an enforcement
action.
There are sound public health reasons for requiring notification as soon as possible.
Pathogens are likely to accompany the turbidity particles that exit the filters, especially with poor
quality source waters. High turbidity levels in the filtered water, even for a limited time, may
represent a significant risk to the public. Increasing the disinfection residual in such cases is
essential, but some pathogens (e.g., Giardia and Cryptosporidium) are relatively resistant to
disinfection. States then should require the system to issue an immediate public notice of the
turbidity violation if the violation is considered to be an immediate health concern.
Moreover, if at any point during the month it becomes apparent that a system will exceed
the monthly turbidity performance standards, as specified earlier in this memorandum, or if a
system exceeds the monthly turbidity performance standards in §141.73 for an extended period
of time (e.g., more than 12 hours), the system should advise the State as soon as possible for
reasons of public health.
li Backwashing Practices
Systems often recycle backwash water. Unless precautions are taken, this water may
contain high pathogen densities that challenge the filter and result in a breakthrough. Several
recent waterborae disease outbreaks have been associated with questionable backwash
procedures.
In the interest of public health, systems should either run backwash waters to waste or
treat these waters before reuse. Treatment may consist of coagulation and settling, and/or
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WSG78
disinfection. As an additional measure, a system may also wish to monitor the source water for
Cryptosporidium and avoid recycling the backwash water when the Cryptosporidium density in
the source water exceeds a particular value (the Severn-Trent Water Authority hi England uses a
value of five oocysts/liter). For determining the Cryptosporidium density, we recommend that
systems use the analytical method specified in the upcoming monitoring and reporting regulation,
the "Information Collection Requirements", which would be used to gain additional information
for the Disinfection Byproducts Rule and the Enhanced Surface Water Treatment Rule.
Section 4.3.2 of the SWTR Guidance Manual recommends procedures for preventing
spikes in the turbidity level in the filter effluent when the filter is placed back on line after
backwash. The section also includes filter-to-waste operating guidelines critical to the
implementation of these procedures is the continuous routine turbidity monitoring of each filter
effluent. I am attaching a copy of Section 4.3.2 of the SWTR Guidance Manual for your
information.
Should you have any questions, please contact Brian Maas at (202) 260-5530.
Attachment
cc:
Drinking Water Branch Chiefs, Regions I-X
Drinking Water Section Chiefs, Regions I-X
Enforcement Coordinators, Regions I-X
PWSS Regional Counsel Contacts, Regions I-X
Kathy Summerlee, Office of Enforcement
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WSG 78
ATTACHMENT
GUIDANCE MANUAL
FOR
COMPLIANCE WITH THE
FILTRATION AND DISINFECTION REQUIREMENTS
FOR
PUBLIC WATER SYSTEMS
USING
SURFACE WATER SOURCES
for
Science and Technology Branch
Criteria and Standards Division
Office of Drinking Water
U.S. Environmental Protection Agency
Washington, D.C.
Contract No. 68-01-6989
by
Malcolm Pimie, Inc. HDR Engineering, Inc.
100 Eisenhower Drive 5175 Hillsdale Circle
Paramus, New Jersey 07653 Eldorado Hills, CA 95630
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WSG78
October, 1990
4.3.2 General
The following recommendations apply to all filtration plants:
a. All filtration plants should provide continuous turbidity monitoring of the effluent
turbidity from each individual filter.3',4 If continuous monitoring is impractical,
routine monitoring of individual filters is recommended as a minimum.
b. All filtration systems should be concerned with the peak turbidity levels in the
filtered water after backwashing and make every attempt to operate the filters to
minimize the magnitude and duration of these turbidity spikes.5
Individual filters should be monitored as discussed in Section 4.3.2.a and when excessive
turbidity spikes are found, corrective actions taken. During these turbidity peaks. Giardia cysts
and other pathogens may be passed into the finished water. There is evidence that a 0.2 to 0.3
NTU increase hi the turbidity during the first period of the filter run can be associated with rises
in Giardia cyst concentrations by factors of twenty to forty (Logsdon, 1985). Special studies
should be conducted to determine the extent of the turbidity spike problems.
There are basically four approaches available for correcting problems with turbidity
spikes after backwashing. These are as follows (Bucklin, et a] 1988):
- Proper chemical conditioning of the influent water to the filter can minimize the
magnitude and duration of these turbidity spikes. This could include proper
control of the primary coagulant chemicals such as alum or iron compounds. In
some cases filter aids using polymers may be needed to control the turbidity
spikes.
'Although this is not a requirement of the SWTR, it is recommended because of the possibility that not all
filters in a treatment plant will produce the same effluent turbidity. This may be due to a variety of conditions that
include bed upsets, failure of media support or underdrain systems, etc. Although the combined effluent from all
the filters may meet the turbidity requirements of the SWTR, the turbidity level from an individual filter may
substantially exceed the limits. This may result in the passage of Giardia cysts or other pathogens.
Validation should be performed at least twice a week based on the procedure outlined in Part 214A in the
16th Edition of Standard Methods. It should be noted that improper installation of continuous monitors may allow
for air bubbles to enter the monitor resulting in false turbidity spikes. To avoid air bubbles reaching the
turbidimeter the sample tap should be installed below the center line of the pipe and an air release valve may be
included on the sample line.
'For most high rate granular bed filters, there is a period of conditioning, or break-in immediately following
backwashing, during which turbidity and particle removal is at a minimum, referred to as the break-in period. The
turbidity peaks are thought to be caused by remnants of backwash water within the pores of and above the media
passing through the filter, and/or floe breakup during the filter ripening period before it can adequately remove
influent turbidity.
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WSG78
- Gradually increasing the filtration rate in increments when placing the filter in
operation. Starting the filter at a low flow rate and then increasing the flow in
small increments over 10 to 15 minutes has been shown to reduce the turbidity
spikes in some cases (Logsdon, 1987).
- Addition of coagulants to the backwash water has also been shown to reduce the
extent of turbidity spikes after backwash. Typically the same primary coagulant
used in the plant is added to the back-wash water. Polymers alone or in
combination with the primary coagulant may also be used.
- Filter-to-waste may be practiced where a portion of the filtered water immediately
after starting the filter is wasted. This is only possible where the filter system has
provided the necessary valves and piping to allow this procedure. There is some
concern whether or not this practice is beneficial. The extra valve operations
needed for filter-to-waste can disrupt the filter flow rate to the extent that they
create their own turbidity spikes. Some knowledge of the time actually needed for
filter-to-waste is also needed before it can be determined that this is an effective
procedure for controlling turbidity spikes. If the length of time the filter-to-waste
is practiced is less than that before the turbidity spike passes, the disruption
caused by the valve operation may actually increase the turbidity spike.
Different plants and the individual filters within the plant may have different turbidity
spike characteristics. The four approaches presented above, therefore, must be evaluated on a
case-by-case basis. Special studies will be required to identify those filters with the turbidity
spike problems and assist in selecting which of the four approaches is best for correcting the
problem. It has been generally found that turbidity spikes can be minimized through one or a
combination of the first three approaches.
In order to establish filter-to-waste operating guidelines, the following procedure is
suggested:
- Review the effluent turbidity data for each filter and determine which filter
historically has the highest effluent turbidity.
- Following backwashing of the filter with the poorest performance, place that filter
into service and collect grab samples every 5 to 10 minutes for a period of at least
60 minutes.6
- Analyze the grab samples for turbidity and determine how long the filter must be
in operation before the effluent turbidity drops
'Continuous turbidity monitoring can be used in place of grab sampling.
7
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WSG 78
to less than or equal to 0.5 NTU
- or 1 NTU in cases where a filtered water turbidity of less than or equal to 1
NTU is allowed.
Limited information exists on the typical magnitude and duration of peak turbidity levels
after backwashing and what levels are considered acceptable to assure that these turbidity spikes
are not associated with passage ofGiardia cysts. Information from plant scale tests, showing the
typical magnitude and duration of these turbidity spikes is available from two plants (Bucklin et
al.. 1988). Studies conducted at these plants over a year showed that these peaks occurred within
the first few minutes after the filter was placed back in operation, their effects lasted for several
hours, and varied hi magnitude from 0.08 to 0.35 NTU on average.
For existing plants without provisions for filter-to-waste, the decision to add the
necessary piping to provide this capability should be made only after carefully evaluating the
other three approaches. If the results of special studies show that the other three options are not
effective in minimizing the turbidity spikes then the expense of adding the filter-to-waste
capabilities may be justified.
For new plants the capability of filter-to-waste may be required by the Primacy Agency or
should be considered. By having this capability, additional flexibility will be available for
turbidity spike control. This flexibility may also be useful for other filter maintenance functions
such as after media replacement or when heavy chlorination of the filter is needed after
maintenance.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 79
Date Signed: March 7,1994
MEMORANDUM
SUBJECT: Clarification on Chlorination BAT for Cyanide
FROM: William R. Diamond, Acting Director
Drinking Water Standards Division, OGWDW
TO: Drinking Water Branch Chiefs, Region I-X
I am writing to inform you that one of the best available technologies (BATs) for cyanide
is not defined specifically enough in the rule language for the Phase V regulation. Chlorine is
listed as one of the three BATs for cyanide in §141.62(c) and §142.62(b). Chlorinating water
containing cyanide at or above the MCL without any regard to pH can lead to a buildup of an
equally toxic compound called cyanogen chloride. The prpper terminology for this BAT is
alkaline chlorination as was discussed in the preamble to both the proposed and final Phase V
regulations. The rule language in §141.62(c) and §142.62(b) will be amended to state that the
BAT is alkaline chlorination (pH >= 8.5) in the Phase VIb regulation.
In the meantime, please use the attached Public Water System (PWS) Warning
developed by Region VIII when cyanide levels exceed the MCL and chlorination is selected as
the BAT. The PWS Warning contains important information regarding: 1) the potential public
health threat that can occur if chlorine is applied at too low of a pH; 2) reasons why alkaline
chlorination is the BAT instead of just chlorination; 3) chemistry and minimum pH requirements
of alkaline chlorination; and 4) guidelines on the application of alkaline chlorination.
Please forward this information to your State Drinking Water Program Directors as soon
as possible so that they can share this information with public water systems when the MCL for
cyanide is exceeded. EPA will be submitting this PWS Warning to the Journal of the American
Water Works Association for their consideration for publication and more widespread
distribution. If you have any questions about the PWS Warning, please call Jeff Kempic at
(202) 260-9567, Bob Clement at (303) 293-1259 or Dr. Robert Benson at (303) 293-1694.
Attachments
cc: Robert J. Blanco, 4604
Alan A. Stevens, TSD
-------
WSG79
PUBLIC WATER SYSTEM WARNING
APPLIES ONLY TO PWSs THAT USE CHLORINE TO OXIDIZE CYANIDE IN DRINKING
WATER THAT EXCEEDS THE 0. 2 MG/L MAXIMUM CONTAMINANT LEVEL (MCL).
The Environmental Protection Agency (EPA) is publishing this warning to alert public
water systems (PWSs) of the potential health hazard that results when chlorine (C12) is used to
oxidize cyanide (CN) in drinking water that exceeds the 0.2 mg/1 MCL. When chlorine is used to
oxidize water contaminated with cyanide, a disinfection by-product (DBF) called cyanogen
chloride (CNC1) is formed. EPA has no direct data on the toxicity of cyanogen chloride in
drinking water. Due to this lack of lexicological data, EPA currently has no plans to regulate
cyanogen chloride. However, chronic exposure to cyanogen chloride may be as harmful as
chronic exposure to cyanide at and above the MCL. Additionally, cyanogen chloride is
volatile and is extremely irritating to the respiratory tract at and above the MCL.
Chlorine quickly and effectively oxidizes cyanide and cyanogen chloride in a process
called alkaline chlorination. Alkaline chlorination oxidizes cyanide to harmless bicarbonate
(HCCV) and nitrogen gas (N2) by using excess chlorine at pH values greater than at least 8.5.
The higher the pH the faster the reaction proceeds. Alkaline chlorination is prescribed over
simple chlorination because of the need to destroy cyanide and cyanogen chloride as quickly as
possible. EPA will change the regulations specifying the best available technology (BAT) for
removing cyanide from chlorination to alkaline chlorination.
Because cyanogen chloride is not regulated and not routinely analyzed for, it is important
that cyanogen chloride be oxidized at the water treatment plant prior to the first customer.
Research on this subject has not been performed at levels representative of the MCL for drinking
water. The available research has been conducted at low levels (less than 0. 1 mg/1) and at high
levels (10-50 mg/1) of cyanogen chloride. Research at both the high and low levels shows the
same important observation: that the higher the pH, the faster the cyanogen chloride is oxidized
to bicarbonate and nitrogen gas. Alkaline chlorination's ability to oxidize cyanide has made it a
popular method to destroy cyanide and avoid the buildup of cyanogen chloride in the metal
plating industry. This same technology can be used in the drinking water treatment industry to
destroy cyanide when levels exceed the MCL. The process of alkaline chlorination proceeds
through two oxidative steps.
The first-stage of alkaline chlorination converts cyanide to cyanate (CNO). The
following chemical equation can be used to calculate chemical dosages for chlorine and
hydroxides in the first-stage:
EPA PWS cyanide warning
EPA contacts: Robert W. Benson (303-293-1694), Robert T. Clement (303-293-1259), Jeffrey B. Kempic (202-260-9567)
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WSG79
However, the reaction is not that simple. The oxidation of cyanide to cyanate progresses
through the intermediate compound cyanogen chloride according to the following reactions:
H2O-> CNC1 + 2OH-
CNC1 + 20H- -> CNO- + Cr + H2O
The oxidation of cyanide to cyanogen chloride occurs instantaneously at all pH values.
The oxidation of cyanogen chloride to cyanate occurs rapidly at pH values of 8.5 and above. The
hypochlorite ion (OCLr) is the active chlorine species in the first stage. Research shows that
within one hour the cyanogen chloride concentration has been significantly reduced Ii2>3'4.
Research conducted at the higher levels of cyanogen chloride show that at pH values less than
7.1 oxidation proceeds very slowly1-2 (Figure 1 & 2). Research conducted at the lower levels of
cyanogen chloride show that oxidation occurs at this very slow rate at pH 5.S3 (Figure 3).
Therefore, to avoid a buildup of cyanogen chloride, the first-stage of alkaline chlorination should
be conducted at pH 8.5 or above. This is accomplished by the addition of hydroxide ions to
increase the pH.
Lower temperature waters appear to slow the reaction down. Temperatures less than 20
degrees Celsius increase the reaction time4 for the hydrolysis of cyanogen chloride (Figure 4).
Therefore, even higher pH values or longer contact times may be necessary to compensate for
slower reaction times in low temperature waters.
The second-stage of alkaline chlorination converts cyanate to bicarbonate and nitrogen
gas and proceeds rapidly in the presence of excess chlorine. The following chemical equation
can be used to calculate chemical dosages for chlorine and hydroxides in the second-stage:
3C1, + 2CNO- + 60H- -> 2HCCV + N, + 6C1' + 2H,0
1 N. S. Chamberlin and H. B. Snyder, Jr., Technology of Treating Plating Wastes. 1955,
p. 277
2 G. E. Eden et al., Destruction of Cyanide in Waste Water by Chlorination. J. Soc.
Chem. Ind., 69: 244-249, (August 1950).
3 Yuefeng Xie and David A. Reckhow, Stability of Cyanogen Chloride in the
Presence of Sulfite and Chlorine. AWWA Proceedings of 1992 WQTC, Toronto, November
15-19,1993.
4G. E. Eden and A. B. Wheatland, Effect of Temperature and the Presence of
Hypochlorite on the Rate of Hydrolysis of Cyanogen Chloride in Alkaline Solution. J. Soc.
rhftm TnH M- Ifitf-lfiQ fliine 1950V
Chem. Ind., 69: 166-169, (June 1950).
EPA PWS cyanide warning
EPA contacts: Robert W. Benson (303-293-1694), Robert T. Clement (303-293-1259), Jeffrey B. Kempic (202-260-9567)
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WSG 79
Hypochlorous acid (HOCI) is the active chlorine species that destroys cyanate. Even a
small percentage of hypochlorous acid will oxidize cyanate. For example, at pH 8.5 (about 10%
hypochlorous acid), cyanate is almost completely oxidized in 10 minutes (Figure 5). Oxidation
occurs even more quickly at lower pH values.
In conclusion, the speed at which cyanogen chloride is oxidized is controlled by the
concentration of the hypochlorite ion. The hypochlorite ion concentration increases as the pH
increases and the entire reaction is dependent upon excess chlorine being available. The best
way to know if the cyanogen chloride is oxidized below the MCL for cyanide is laboratory
testing. However, EPA does not require this testing for the following reasons: 1) Labs available
to perform this testing are few; 2) There is not a laboratory certification process for cyanogen
chloride; 3) The holding times are very short making it difficult to assess the accuracy of the
levels of cyanogen chloride in drinking water. Therefore, in lieu of testing, the following
guidelines are provided to ensure that cyanide is completely oxidized to bicarbonate and nitrogen
gas without the buildup of cyanogen chloride and that the water will be safe to drink prior to the
first customer:
1.
2.
3.
Maintain a pH of 8.5 or greater.
Maintain high free chlorine residual, but not greater than 4.0 mg/1.
Choose the percent removal needed and ensure that the contaminated water remains in
contact with excess free chlorine, prior to the first customer, according to the following
Table [adapted from the kinetics reactions developed by research conducted by Dr. David
A. Reckhow and Yuefeng Xie, University of Massachusetts, Amherst].
Percent Removal
90
95
99
99.9
Ct (min-mg/1)
68
89
136
204
4. Compensate for the temperature effects with longer contact time or higher pH values.
EPA expects that the number of PWSs with cyanide greater than the MCL in their raw
water to be low; however, those that do may have significant levels. For example, contamination
from one cyanide heap leaching operation has reported cyanide levels as high as 2.7 mg/1 in the
receiving stream. PWSs with very high levels of cyanide in their raw water should consult with
the state and experts hi this field to ensure that above guidelines are adequate.
EPA PWS cyanide warning
EPA contacts: Robert W. Benson (303-293-1694), Robert T. Clement (303-293-1259), Jeffrey B. Kempic (202-260-9567)
-------
WSG79
'.2
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u
2
O
a
ex.
UJ
Q
oc
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'M 7-03
01
O-07
OO5
5 10 15 20 25 '30 35 4O. 45. 5O 55" 6O' 65 7C
PERJOO AFTER ADOITION . OF HYPOCHLaRlTE. min.
FIGURE 1
Removal of cyanogen chloride by the action of
hypochlorite in buffer solutions at 20° C.2
-------
WSG79
o
cu,
o:
UJ
Q
or
o
_j
X
o
O
fe
O
f
FIGURE 2
IO 15 20 25
RETENTION IN MINUTES
30
Effect of pH on hydrolysis of cyanogen chloride to
cyanates in presence of a chloramine residual.1
-------
WSG79
100
c
o
Ł 10
o
o
S- 3
o
.8
pH 7.0
v pH 8..2 •
V pH 9.0
• pH 10.0
O pH 10.7
20 . 4-0 60 80
Time (minute)
100
FIGURE 3 Degradation of CNCI in the Presence or Chlorine
(1 mg/L)3
-------
WSG79
O*O9
10 15 jo
JO.
$0 to
TIME. mJn,
70
too
FIGURE 4
Effect of temperature on the rate of hydrolysis of
cyanogen chloride at a pH value of approximately
II.4
-------
WSG79
IO.O
9.5
9.0
15 mins. a I pH • 9.2
4O mlns. d! pH*9.65
8.5
8.0
!--"IO miru. al pH • 8.4
10
20
30 4O 50
RETENTION IN MINUTES
60 70
OO
FIGURE 5 Time required for cyanate destruction.1
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG80
Date Signed: March 14,1994
MEMORANDUM
SUBJECT: EPA Indian Policy
TO: All Employees
In 1984, EPA became the first Federal agency to adopt a formal Indian Policy (copy
attached). EPA is proud of that Policy, which has provided the framework for our developing
partnership with Tribes. Since 1984 Agency programs have changed and several of our statutes
have been amended to address Tribal needs. Nevertheless, the core principle of the Policy, a
commitment to working with Federally recognized tribes on a government-to-government basis
to enhance environmental protection, has been reaffirmed by President Clinton and remains the
cornerstone of EPA's Indian program. Accordingly, therefore, I formally reaffirm the EPA Indian
Policy.
The challenge for EPA today is to implement its Policy effectively. Previous
administrations have addressed implementation, both in a 1984 Policy Implementation Guidance
and a 1991 Concept Paper. We must now update and strengthen these documents and our
implementation programs to reflect the goals and values of our long-term vision and strategic
agenda. A key element for successfully implementing the Indian Policy must be a commitment
to fully institutionalize the Policy into the Agency's planning and management activities.
On March 7, Martha Prothro, formerly Deputy Assistant Administrator for Water, joined
my staff to assist in developing our Tribal Programs. I have asked Martha and Bill Yellowtail,
Regional Administrator, EPA Region VIII, to form a team of Agency leaders to make
recommendations on EPA/Tribal relations and the implementation of the Policy. The work of
this group should help the Agency develop the best structure and adopt the best strategies for
implementing the goals of the Policy. The team will work with Tribal representatives, including
the Tribal Operations Committee and others, in drafting new implementation guidance. This
guidance will provide a blueprint for transforming the Policy's vision into a reality for federally
recognized Indian Tribes, including Alaskan Tribes.
This is an exciting opportunity for us to develop a stronger partnership with Tribal
governments in protecting the environment. I ask all of you to help make this effort a great
success.
Carol M. Browner
Attachment
-------
WSG80
EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL PROGRAMS ON
INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24,1983, supporting the
primary role of Tribal Governments in matters affecting American Indian reservations. That
policy stressed two related themes: (1) that the Federal Government will pursue the principle of
Indian "self-government" and (2) that it will work directly with Tribal Governments on a
"government-to-government" basis.
The Environmental Protection Agency (EPA) has previously issued general statements of
policy which recognize the importance of Tribal Governments in regulatory activities that impact
reservation environments. It is the purpose of this statement to consolidate and expand on
existing EPA Indian Policy statements in a manner consistent with the overall Federal position in
support of Tribal "self-government" and "government-to-government" relations between Federal
and Tribal Governments. This statement sets forth the principles that will guide the Agency in
dealing with Tribal Governments and in responding to the problems of environmental
management on American Indian reservations in order to protect human health and the
environment. The Policy is intended to provide guidance for EPA program managers in the
conduct of the Agency's congressionally mandated responsibilities. As such, it applies to EPA
only and does not articulate policy for other Agencies in the conduct of their respective
responsibilities.
It is important to emphasize that the implementation of regulatory programs which will
realize these principles on Indian Reservations cannot be accomplished immediately. Effective
implementation will take careful and conscientious work by EPA, the Tribes and many others. In
many cases, it will require changes in applicable statutory authorities and regulations. It will be
necessary to proceed in a carefully phased way, to learn from successes and failures, and to gain
experience. Nonetheless, by beginning work on the priority problems that exist now and
continuing in the direction established under these principles, over time we can significantly
enhance environmental quality on reservation lands.
POLICY
In carrying out our responsibilities on Indian reservations, the fundamental objective of
the Environmental Protection Agency is to protect human health and the environment. The
keynote of this effort will be to give special consideration to Tribal interest in making Agency
policy, and to insure the close involvement of Tribal Governments in making decisions and
managing environmental programs affecting reservation lands. To meet this objective, the
Agency will pursue the following principles:
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WSG 80
1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL
GOVERNMENTS ON A ONE-TO-ONE BASIS (THE "GOVERNMENT-TO-
GOVERNMENT" RELATIONSHIP), RATHER THAN AS SUBDIVISIONS OF OTHER
GOVERNMENTS.
EPA recognizes Tribal Governments as sovereign entities with primary authority and
responsibility for the reservation populace. Accordingly, EPA will work directly with Tribal
Governments as the independent .authority for reservation affairs, and not as political
subdivisions of States or other governmental units.
2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY
PARTIES FOR SETTING STANDARDS, MAKING ENVIRONMENTAL POLICY
DECISIONS AND MANAGING PROGRAMS FOR RESERVATIONS, CONSISTENT WITH
AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the agency will view Tribal
Governments as the appropriate non-Federal parties for making decisions and carrying out
program responsibilities affecting Indian reservations, their environments, and the health and
welfare of the reservation populace. Just as EPA's deliberations and activities have traditionally
involved the interests and/or participation of State Governments, EPA will look directly to Tribal
Governments to play this lead role for matters affecting reservation environments.
3. THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST
TRIBES IN ASSUMING REGULATORY AND PROGRAM MANAGEMENT
RESPONSIBILITIES FOR RESERVATION LANDS.
The Agency will assist interested Tribal Governments in developing programs and in
preparing to assume regulatory and program management responsibilities for reservation lands.
Within the constraints of EPA's authority and resources, this aid will include providing grants
and other assistance to Tribes similar to that we provide State Governments. The Agency will
encourage Tribes to assume delegable responsibilities, (i.e. responsibilities which the Agency has
traditionally delegated to State Governments for non-reservation lands) under terms similar to
those governing delegations to States.
Until Tribal Governments are willing and able to assume full responsibility for delegable
programs, the Agency will retain responsibility for managing programs for reservations (unless
the State has an express grant of jurisdiction from Congress sufficient to support delegation to
the State Government). Where EPA retains such responsibility, the Agency will encourage the
Tribe to participate in policy-making and to assume appropriate lesser or partial roles in the
management of reservation programs.
4. THE AGENCY WILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING
LEGAL AND PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND
EFFECTIVELY WITH TRIBAL GOVERNMENTS ON RESERVATION PROGRAMS.
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WSG 80
A number of serious constraints and uncertainties in the language of our statutes and
regulations have limited our ability to work directly and effectively with Tribal Governments on
reservation problems. As impediments in our procedures, regulations or statutes are identified
which limit our ability to work effectively with Tribes consistent with this Policy, we will seek to
remove those impediments.
5. THE AGENCY, IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY,
WILL ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED
WHENEVER EPA'S ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION
ENVIRONMENTS.
EPA recognizes that a trust responsibility derives from the historical relationship between
the Federal Government and Indian Tribes as expressed in certain treaties and Federal Indian
Law. In keeping with that trust responsibility, the Agency will endeavor to protect the
environmental interests of Indian Tribes when carrying out its responsibilities that may affect the
reservations.
6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL, STATE
AND LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL PROBLEMS OF
MUTUAL CONCERN.
Sound environmental planning and management require the cooperation and mutual
consideration of neighboring governments, whether those governments be neighboring States,
Tribes, or local units of government. Accordingly, EPA will encourage early communication and
cooperation among Tribes, States and local governments. This is not intended to lend Federal
support to any one party to the jeopardy of the interests of the other. Rather, it recognizes that in
the field of environmental regulation, problems are often shared and the principle of comity
between equals and neighbors often serves the best interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE
RELATED RESPONSIBILITIES ON INDIAN RESERVATIONS TO ENLIST THEIR
INTEREST AND SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME
ENVIRONMENTAL PROGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will seek and promote cooperation between Federal agencies to protect human
health and the environment on reservations. We will work with other agencies to clearly identify
and delineate the roles, responsibilities and relationships of our respective organizations and to
assist Tribes in developing and managing environmental programs for reservation lands.
8. THE AGENCY WILL STRIVE TO ASSURE COMPLIANCE WITH
ENVIRONMENTAL STATUTES AND REGULATIONS ON INDIAN RESERVATIONS.
In those cases where facilities owned or managed by Tribal Governments are not in
compliance with Federal environmental statutes, EPA will work cooperatively with Tribal
leadership to develop means to achieve compliance, providing technical support and consultation
as necessary to enable Tribal facilities to comply. Because of the distinct status of Indian Tribes
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WSG80
and the complex legal issues involved, direct EPA action through the judicial or administrative
process will be considered where the Agency determines, in its judgement, that: (l>a significant
threat to human health or the environment exists, (2) such action would reasonably be expected
to achieve effective results in a timely manner, and (3) the Federal Government cannot utilize
other alternatives to correct the problem hi a timely fashion.
In those cases where reservation facilities are clearly owned or managed by private parties
and there is no substantial Tribal interest or control involved, the Agency will endeavor to act in
cooperation with the affected Tribal Government, but will otherwise respond to noncompliance
by private parties on Indian reservations as the Agency would to noncompliance by the private
sector elsewhere hi the country. Where the Tribe has a substantial proprietary interest in, or
control over, the privately owned or managed facility, EPA will respond as described in the first
paragraph above.
9. THE AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS
PLANNING AND MANAGEMENT ACTIVITIES, INCLUDING ITS BUDGET, OPERATING
GUIDANCE, LEGISLATIVE INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM
AND ONGOING POLICY AND REGULATION DEVELOPMENT PROCESSES.
It is a central purpose of this effort to ensure that the principles of this Policy are
effectively institutionalized by incorporating them into the Agency's ongoing and long-term
planning and management processes. Agency managers will include specific programmatic
actions designed to resolve problems on Indian reservations hi the Agency's existing fiscal year
and long-term planning and management processes.
William D. Ruckelshaus
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WSG81-90
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 81
Date Signed: May 25,1994
MEMORANDUM
SUBJECT: New Public Water System Supervision Program Settlement Penalty Policy
FROM: James R. Elder, Director
Office of Ground Water and Drinking Water
TO: Regional Water Management Division Directors
Regional Counsels
Attached is the Agency's new penalty policy to be used in establishing appropriate
settlement penalties in the Public Water System Supervision Program. We wish to thank you and
your staff for then- comments on the May 1993 and earlier drafts of this policy. Those comments
have been carefully considered and incorpdfated in the final policy.
This policy apples, to-ail civil judicial actions and to all administrative complaints for
penalties files or issued against public water systems after the effective date of this policy. In
addition, this policy applies to all pending civil judicial actions in which the government has not
yet transmitted to the defendant an oral or written proposed settlement penalty figure which has
been approved by Agency Headquarters.
The effective date of this policy is May 25,1994. this policy implements the Agency's
Policy on Civil Penalties (#GM-21) and A Framework for Statute Specific Approaches to Penalty
Assessments (#GM-22).
This penalty policy is intended to promote a more consistent, Agency-wide approach to
calculation of settlement penalties in the Public Water System Supervision program. We believe
that this penalty policy, when effectively applied, will promote the goals of improving recovery
of the economic benefit of noncompliance, providing substantial deterrence for noncompliance,
and providing fair and equitable treatment of the regulated community.
, In the coming weeks, "we will ensure that sample calculations are sent to you to provide
guidance in performing calculations in accordance with this policy. We will also determine
whether there is a need to conduct training workshops to provide further guidance on the
application of this policy. In the interim, questions on the application of this policy may be
directed to Andy Hudock at 202-501-6032 or David Hindin at 501-6004.
Attachment
cc: (w/attachment)
ORC Water Branch Chiefs
Regional PWSS Branch Chiefs
John Cruden, DOJ
Joel Gross, DOJ
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WSG 81
U.S. Environmental Protection Agency
Public Water System Supervision Program Settlement Penalty Policy
for Civil Judicial Actions and Administrative Complaints for Penalties
Effective May 25,1994
I. INTRODUCTION
This document sets forth the policy of the U.S. Environmental Protection Agency for
establishing appropriate settlement penalties in civil judicial actions and in administrative
complaints for penalties in the Public Water System Supervision (PWSS) Program. This policy
applies to all civil judicial actions and to all administrative complaints for penalties initiated after
the effective date of this policy, and to all pending civil judicial actions in which the government
has not yet transmitted to the defendant an oral or written proposed settlement penalty figure
which has been approved by Agency Headquarters. This policy provides, based on the
circumstances of the case, the lowest penalty figure which the Federal Government is generally
willing to accept in settlement; however, there may be circumstances so egregious that the
Federal Government should instead seek the statutory maximum and should not even consider
acceptance of a lower figure. This policy implements the Agency's Policy on Civil Penalties
(#GM-21) and A Framework for Statute Specific Approaches to Penalty Assessments (#GM-22).
An appropriate penalty is one that accomplishes three objectives. First, it should deter
violations of the law by placing the violator in a worse position financially than those in the
regulated community who have complied in a timely fashion. Second, there must be fair and
equitable treatment of the regulated community. Therefore., the penalty should be consistent
with the Agency's penalty policy and promote a consistent and logical approach to the assessment
of civil penalties, while allowing for factors unique to the PWSS Program. Third, the penalty
should result in expeditious resolution of the identified problem(s). Such resolution can be
achieved through an incentive, such as mitigating the penalty for supplemental environmental
projects, or a disincentive, such as increasing the penalty figure for recalcitrance or for degree of
willfulness if settlement negotiations are drawn out.
Penalty figures are calculated using several components which are based on the three
objectives set forth above. The quantitative application of each of these components is described
hi detail in Section III of this policy.
II. STATUTORY BASIS
The Safe Drinking Water Act (SDWA) requires the Agency to protect public water
supplies (PWSs). Part B of the SDWA requires EPA to promulgate National Primary Drinking
Water Regulations (NPDWRs). Part D provides the Agency with the authority to deal with
"emergencies" and Part E (among other things) provides the Agency with the authority to order
monitoring and reporting for contaminants and conduct inspections. To promote effective
enforcement of the NPDWRs, several sections of the SDWA grant civil penalty authority to the
Agency. These sections are as follows:
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WSG 81
PARTB:
(a) Section 1414(b): The court may, taking into account the seriousness of the
violation, the population at risk, and other appropriate factors, impose on the
violator a civil penalty not to exceed $25,000 for each day in which such violation
occurs.
(b) Section 1414(g)(3): Violation of an administrative order can result in a $5,000
maximum penalty assessed administratively; up to $25,000 per day of violation
may be obtained in a civil action to enforce the order.
PARTD:
(c) Section 1431(b): The statutory maximum is $5,000 per day hi a civil action for
violation of an emergency order.
(d) Section 1432(c): Tampering with a PWS carries a maximum civil penalty of
$50,000; a maximum civil penalty of $20,000 can be imposed for an attempt or
threat to tamper with a public water supply,
PARTE:
(e) Section 1445(c): The statutory maximum penalty is $25,000 in a civil judicial
action for failing or refusing to keep appropriate records, make reports or conduct
monitoring, or allow the Agency or the Comptroller General (or his or her
representatives) to conduct any audits or inspections to assist in the development
of regulations.
III. PENALTY CALCULATION
Development of a settlement penalty amount under this policy is a two-step process.
First, the calculation includes computation of an economic benefit component and a gravity
component, which incorporates the concepts of seriousness of the violation and population at
risk. Then, this figure is adjusted using other components, such as degree of willfulness and/or
negligence, history of noncompliance, litigation considerations, and ability to pay.
The result of these adjustments, within the constraints of the policy, is the lowest penalty
figure which the Federal government is generally willing to accept in settlement, or in other
words, the "bottom-line" penalty amount. In accordance with the Agency's Policy .2iLŁiyjJ
Penalties (#GM-21), this represents the penalty figure that is the minimum acceptable settlement
in civil judicial actions and administrative penalty actions. As new or better information is
obtained in the course of litigation or settlement negotiations, or if protracted litigation or
settlement negotiations unduly extend the expected duration of the violation, this "bottom-line"
penalty amount shall be adjusted further, either upward or downward, consistent with the various
policy factors, and subject to concurrence by Headquarters.
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The overall equation for the settlement penalty calculation under this policy is generally:
Penalty = economic benefit + (gravity x degree of negligence/willfulness x history of
noncompliance) - litigation considerations = ability to pay.
Attachment I contains a worksheet to be used to calculate the settlement penalty.
As a general goal, the Agency should always seek a penalty that, at a minimum, recovers
the economic benefit of noncompliance, plus some amount reflective of the gravity or
seriousness of the violation. Legitimate litigation considerations or ability-to-pay considerations,
however, may preclude that goal hi some specific instances. However, regardless of calculations,
as a matter of policy, hi no instances shall the "bottom-line" settlement penalty be less than
$1,000 in administrative cases and $5,000 in civil judicial cases.
If the calculated "bottom-line" settlement penalty amount exceeds the maximum penalty
that can be obtained administratively, the Agency shall instead proceed judicially. In rare
circumstances, the calculated "bottom-line" settlement penalty in civil judicial cases may exceed
the statutory maximum; hi such circumstances, the statutory maximum penalty will serve as the
new "bottom-line" penalty.
A. Economic Benefit
PWSs that violate the SDWA are likely to have obtained an economic benefit or savings
as a result of expenditures that were delayed or completely avoided during the period of
noncompliance. In calculating economic benefit in a PWSS Program case, one must consider the
amount of money saved by avoiding or delaying expenditures such as, but not limited to:
• Sampling and analysis (including laboratory, fees, cost of mailing samples, and
the cost of the operator's time to take the samples);
• Capital equipment improvements or repairs, including engineering design,
purchase, installation, and replacement;
• Public notifications, including printing and mailing;
• Operation and maintenance expenses and other annual expenses;
• One-time acquisitions (such as land purchase); and
• Development and implementation of a source water protection program.
The Agency's standard method for calculating the economic benefit of delayed and
avoided pollution control expenditures is through the use of the Agency's BEN model. Please
refer to the "BEN User's Manual (Office of Enforcement, December 1993, or any subsequent
revision) for specific information on the operation of BEN. In some circumstances, it may be
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necessary to perform a series of BEN runs in order to better account for different types of
violations involving different avoided costs occurring over different periods of noncompliance.
The standard BEN model may not be appropriate in situations in which the violator is a
privately-owned regulated utility. The Agency is exploring the possibility of developing a.
separate benefit model to estimate the savings that a regulated utility may have obtained by
delaying compliance expenditures. In the interim, a privately-owned regulated utility's economic
benefit may be computed through a profit analysis specific to the particular utility. A profit
analysis can be performed by financial consultants available to the Agency.
B. Gravity Component
The gravity component includes two factors which are quantified and then multiplied
together for each type of violation: 1) a factor related to the seriousness of the violation, in terms
of actual or potential harm to human health; and 2) a factor related to population exposure, which
reflects the extent of time that the service population was subjected to actual or potential risk due
to noncompliance. The gravity component must be at least $1,000 for all PWSS, in order for the
penalty to have some deterrence value in addition to just recapturing economic benefit.1
The gravity factor related to the seriousness of the violation is selected separately for each
type of violation. In Attachment 2, violations by type are listed in priority order (from highest,
with5 a'corresponding factor of 2.5, to lowest, with a corresponding factor of 1.1) based on actual
or potential impact on human health. The current significant noncompliance (SNC) definition is
incorporated into these types. If the maximum contaminant level (MCL) and the SNC level are
the same numerical values for a particular contaminant, the gravity factor chosen shall
correspond to the higher violation level, based on Attachment 2.
These gravity seriousness factors represent only the minimum factors that should be used;
the Agency may choose to use higher factors in some circumstances. For example, if the violator
has monitoring or reporting (M/R) violations and has a past history of MCL violations for those
same contaminants, those M/R violations are considered as if they were MCL violations for the
1 EPA should be particularly firm in calculating the gravity component for violations of
orders issued under, or civil cases filed under §1431 of the SDWA (e.g., the emergency
provisions). Because §1431 actions address "imminent and substantial endangerment" to human
health, EPA should respond swiftly and severely. In civil judicial cases where the water system
owner/operator violated a §1431 order, the gravity shall reflect the seriousness of the violation.
The maximum statutory penalty is $5,000 in a civil judicial action for violation of the emergency
order itself. If, however, the § 1431 order was issued in response to violations of the NPDWRS,
and if the Region determines that a higher penalty is more appropriate, then the Region could
choose to prove these underlying violations and could assess a penalty of up to $25,000 per day
per violation in a civil judicial action taken under §1414 and/or §1431. For guidance on using
§1431 authorities, please refer to the "Final Guidance on Emergency Authority under Section
1431 of the Safe Drinking Water Act, dated September 27,1991 (PWSS Water Supply guidance
# 87).
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purposes of this settlement penalty calculation. If the violator has not sampled for those
contaminants as required, and therefore does not have a demonstrated history of compliance for
those contaminants, these M/R violations should be considered more serious and should be
considered as MCL violations, for the purposes of this penalty calculation. (Note that continued
M/R violations would generally make the. violator an M/R significant noncomplier (SNC) by
definition, increasing the associated gravity seriousness factor, as shown in Attachment 2.)
In calculating the gravity factor related to the population exposure, the number of years in
violation (computed separately for each type of violation as the number of months divided by
twelve) is multiplied by the population served by the water system in violation.2 For example,
for a water system in violation of one requirement for one contaminant for 18 months and
serving 5000 people, the gravity component related to population exposure would be $7,500 (i.e.,
[5,000](18/12]). (For the purposes of this part of the calculation only, the Agency may choose to
use the population served at the time of the violation, rather than the current population served.)
The gravity factor related to the seriousness of the violation is then multiplied by the gravity
factor related to population exposure to determine the actual total gravity portion of the penalty
for each type of violation. The gravity components for each type of violation are then added to
determine the total gravity portion of the penalty.
C. Adjustment Components
After the economic benefit and gravity components are calculated, these amounts may be
modified according to several adjustment components. Adjustment components address the
following four concerns: degree of willfulness and/or negligence, history of noncompliance,
litigation considerations, and ability to pay. Adjustment components for the degree of
willfulness and/or negligence and for history of noncompliance are applied only to the gravity
component; adjustment components for litigation considerations and for ability to pay are applied
to the entire penalty amount, In general, adjustment components can either increase or decrease
the penalty. The penalty calculation worksheet in Attachment I incorporates the range of
possible values for each of these adjustment components, as discussed below.
1. Degree of Willfulness and/or Negligence: Ignorance of the law or regulation is not a reason
to reduce a penalty. Therefore, the "sophistication" of the violator would only serve to increase
the penalty. Given the relatively ample resources and personnel of the larger water systems, this
adjustment component should be frequently applied to large water systems, but it could well
apply to smaller systems too.
2 In computing the duration of noncompliance for M/R violations, for the settlement
penalty calculation, estimate the length of time that monitoring has been and will be delayed or
avoided, starting from the last day of the compliance period, or, if applicable, from the date
specified in an order or consent decree.
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In assessing the degree of willfulness and/or negligence of the water system
operator/owner, all persons are expected to comply completely with applicable requirements. If a
violator has shown disregard for regulations and has been uncooperative with the Agency and/or
the State hi its efforts to return the system to compliance, the Agency uses this component to
increase the penalty by up to 100% of the gravity component. However, if the violator has been
only mildly uncooperative, the penalty will be increased by a smaller amount, reflecting the
degree of cooperation. Therefore, this factor, if appropriate, could increase the gravity
component by 1 % to 100%, by multiplying the gravity by a factor between 1.01 and 2.00.
Otherwise, this factor remains at 1.00.
2. History of Noncompliance: The history of noncompliance of the violator must be
considered in setting a penalty. The Agency must consider whether any enforcement actions had
previously been taken by the Agency or by the State against the water system for violations
within the past five years, and whether the violator returned to compliance in. response to those
enforcement actions. Other considerations could include similarity of current violations to
previous violation(s), how recent any previous violations were, the number of previous
violations, and the violators responsiveness to addressing these violations.
This factor increases the total gravity by between 10% and 30% for each enforcement
action against this violator as follows:
10% for each notice of violation or equivalent action;
20% for each administrative order or equivalent action; and
30% for each emergency order, complaint for penalties, or equivalent action.
Further, if the violator has a history of previous violations and an absence of ensuing
enforcement actions, this factor is set at 20%. Even if the enforcement actions address the same
violations, this factor is still applied for each enforcement action. This factor is applied
regardless of whether enforcement actions are taken by States or by EPA, and regardless of
distinctions among types of administrative orders (e.g., "boil-water" orders or consent orders).
As an example of the correct application of factors for history of noncompliance, consider
a system which has been issued a notice of violation and two administrative orders in the past
five years. The adjustment to the gravity component of the penalty for history of noncompliance
equals: 1.10 (for the notice of violation) x 1.20 x 1.20 (for the two administrative orders). In this
example, the gravity component would be multiplied by this total adjustment or 1.58 (1.10 x 1.20
x 1.20) for history of noncompliance, and also multiplied by the adjustment factor for degree of
willfulness/negligence in order to obtain the adjusted gravity component.
3. Litigation Considerations: Some enforcement cases may have weaknesses or equitable
problems that may persuade a court to assess a penalty less than the statutory maximum amount
The simple existence of weaknesses in a case, however, should not automatically result in a
litigation consideration reduction of the preliminary penalty amount (i.e., economic benefit +
gravity + adjustments for willfulness and history of noncompliance). The government should
evaluate every penalty with a view toward the potential for protracted litigation and attempt to
ascertain the maximum civil penalty the court is likely to award if the case proceeds to trial. The
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basic rule for litigation considerations is that the government may reduce the amount of the civil
penalty it will accept at settlement to reflect these considerations (i.e., weaknesses or equitable
issues) where the facts demonstrate a substantial likelihood that the government will not achieve
a higher penalty at trial.
Because the settlement penalty is meant to represent a reasonable compromise of EPAs
claim for the statutory maximum, before making a settlement offer, EPA must determine the
statutory maximum penalty and estimate how large a penalty the government might obtain if the
case were to proceed to trial. Given the limited number of judicial opinions on the issue of
penalties in cases involving PWSS, Agency legal staff must use their best professional judgment
in determining what penalty a court might assess hi the case at hand. Any adjustments for
litigation considerations must be taken on a factual basis specific to the case.
Although there is no universal list of litigation considerations, there is a list of factors that
should be considered in evaluating whether the preliminary settlement penalty exceeds the
penalty the Agency would likely obtain at trial. Potential litigation considerations could include:
a. Known problems with the government's evidence proving liability or supporting a
civil penalty;
b. The credibility, reliability, and availability of witnesses;3
c. The informed, expressed opinion of the judge assigned to the case (or person
appointed by the judge to mediate the dispute), after evaluating the merits of the
case.4
d. The record of the judge in any case presenting similar environmental issues. (In
contrast, the reputation of the judge, or the judge's general demeanor, without a
specific penalty or legal statement on a similar case, is rarely sufficient as a
litigation consideration.)
3 The credibility and reliability of witnesses relates to their demeanor, reputation,
truthfulness, and impeachability. For instance, if a government witness has made statements
significantly contradictory to the position he is to support at trial, his credibility may be
impeached by the respondent or defendant. The availability of a witness will affect the
settlement bottom-line if the witness cannot be produced at trial. The inconvenience or expense
of producing the witness at trial is not a litigation consideration and therefore, should not affect
the bottom-line penalty.
4 This factor should not be applied in anticipation of arguments, or at the stage of initial
referral. The Agency should not be unduly influenced by taking at face value what a judge
attempting to encourage a settlement might say.
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e. Statements made by Federal, State or local regulators that the respondent or
defendant may credibly argue led it to believe it was complying with the Federal
law under which EPA is seeking penalties.
f. The payment by the defendant of civil penalties for the same violations in a case
brought by another plaintiff,5
g. The development of new, relevant case law.6
h. A blend of troublesome facts and weak legal positions such that the Agency faces
a significant risk of obtaining a negative precedent at trial of national significance.
In evaluating the list of possible litigation considerations set forth above, the Region shall
evaluate each consideration for the impact it is likely to have on the Agency's ability to obtain a
trial penalty in excess of the "bottom-line" penalty amount. The application of litigation
considerations before a complaint is filed would usually be premature, because at that time the
Agency generally does not have enough information to fully evaluate litigation risk. Reductions
for litigation considerations are more likely to be appropriate after the Agency obtains an
informed view, through discovery and settlement activities, of the weaknesses in its case and
how the specific court views penalties in the case.
The Agency recognizes that .this evaluation of litigation considerations often reflects
subjective legal opinions. Thus, except as discussed below in instances in which a special
litigation consideration for non-profit entities may apply, a Regional office may reduce the
penalty by up to one-third of the adjusted gravity amount (after adjustments for degree of
willfulness and/or negligence and adjustments for history of noncompliance) for litigation
considerations without Headquarters approval. Of course, this reduction must be clearly
explained in the settlement case file.
In evaluating possible litigation considerations, Agency staff should recognize that
litigation considerations do not include:
5 If the defendant has previously paid civil penalties for the same violations to another
plaintiff, this factor may be used to reduce the amount of the settlement penalty by no more than
the amount previously paid for the same violations. Because a violator is generally liable to
more than one plaintiff, the prior payment of a civil penalty should not generally result in a
dollar-for-dollar reduction of the Agency penalty settlement amount. If the previous case
included other violations, only a portion of the penalty already paid should be considered in
reducing the penalty in the case at hand.
6 Between the time the Region initiates or refers a case, new case law relating to liability
or penalty assessment may affect the strength of the Agency's legal arguments. In that
circumstance, the Region may apply litigation considerations to adjust its initial penalty
settlement figure. Of course, favorable new case law would be used to bolster the preliminary
settlement amount.
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a. The Region's desire to minimize the resource investment in the case.
b. A generalized goal (in opposition to established Agency policies) to avoid
litigation or to avoid potential precedential areas of the law.7
c. A duplicative statement of elements included or assumed elsewhere in the Penalty
Policy, such as inability to pay, "good faith" or a "lack of willfulness" by a
respondent or defendant.
d. Off-the-record statements by the court, before it has had a chance to evaluate the
specific merits of the case, that large penalties are not appropriate, are generally,
by themselves, not a reason to reduce the preliminary settlement penalty amount.
e. By itself, the failure of a regulatory agency to initiate a timely enforcement action
is not a litigation consideration.
Cases in which the owner of the PWS is a non-profit entity, such as a municipality, may
involve special litigation considerations because of the perceived reluctance of some Federal
courts to order non-profit entities to pay very large penalty amounts to the Federal Treasury. In
these cases in which the penalty amount is extremely large relative to the size of the municipality,
the Agency may elect to reduce the penally, based on a "per capita" national litigation
consideration. This litigation consideration, to be used only in actions involving non-profit
entities, is calculated as follows:
Step 1. Calculate the product of the service population multiplied by $2 per person, times the
total number of months in which any violation occurred in the past five years (without "double-
counting" months, up to a maximum of 60 months), divided by 12.
Step 2. If this product is greater than the preliminary penalty amount (calculated as economic
benefit + [gravity x adjustments for willfulness and history of noncompliance]) then this
litigation consideration does not apply and the preliminary penalty amount remains unchanged.
Step 3. If the product calculated in step 1 (above) is less than the preliminary penalty amount (as
defined in step 2 above), calculate the difference between the preliminary penalty amount and the
product. Next, take 10% of that difference and add it to the product, thus computing the adjusted
penalty amount.
7 There are times when the Agency and the Department should fully litigate a civil or
criminal case as it may create a beneficial precedent for the Federal government. An example is
U.S. v . Midway Heights County Water District (695 F. Supp. 1072,1076, E.D. Cal. 1988), in
which the court found that 1) the definition of human consumption extends beyond just ingestion
and is broader than merely whether the service population drinks the water, and 2) the presence
of organisms that were accepted indicators of the potential for the spread of serious disease
presented an imminent (and substantial) endangerment, regardless of whether actual illnesses had
been reported. .
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This calculation may be simplified and represented as:
A = (0.9xB) + (0.1xC)
where A represents the adjusted penalty (not just the deduction for litigation considerations) after
applying this "per capita1 national litigation consideration, B represents the product calculated in
step 1, and, C represents the preliminary penalty amount (calculated as economic benefit +
[gravity x adjustments for willfulness and history of noncompliance]).
This special litigation consideration may only be used for non-profit entities, and, even
then, only if the preliminary penalty amount (as defined above) is more than the product
calculated in step 1. This litigation consideration may be taken before the complaint is filed.8 If
this special litigation consideration is used, any additional penally reductions must be justified
by compelling and extraordinary litigation problems or demonstrated financial inability to pay
and receive prior approval from Headquarters. If this special litigation consideration for non-
profit entities is used, the Region may not also reduce tile penalty by up to one-third of the
adjusted gravity amount (including adjustments for degree of willfulness and/or negligence and
adjustments for history of noncompliance) for litigation considerations without Headquarters
approval. Further, supplemental environmental projects (SEPS) shall not be used to reduce the
cash penalty below the amount calculated according to this special litigation consideration.
4. Ability to Pay: The Agency typically does not request penalties/settlements clearly beyond
the means of the violator. The ability-to-pay adjustment component reduces the penalty to the
highest penalty amount that the violator can reasonably pay and still provide safe drinking water
to its customers.
An adjustment for ability-to-pay may only be made if the violator demonstrates and
documents that it has and will continue to have insufficient economic resources to pay the
calculated penalty. The violator must submit the necessary information demonstrating actual
inability to pay as opposed to unwillingness to pay. If the violator is unwilling to cooperate in
demonstrating an inability to pay the penalty, this adjustment should not be considered in the
penalty calculation, because, without the cooperation of the violator, the Agency will generally
not have adequate information to determine accurately the financial position of the violator.
At a minimum, the owner of a privately-owned water system should provide Federal tax
returns from the previous three years and should submit a list of assets and liabilities. This list of
assets and liabilities generally gives a truer picture of the violator's financial assets than do tax
returns. In addition, the violator can be required to provide a certified financial statement
prepared by a certified public accountant.
Municipal water systems do not submit Federal tax returns, but can submit documents
pertaining to the financial health of the community, such as bond ratings, median income of
8 This national generic litigation consideration may be removed based on changes in the
Act, settlements, or case law.
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residents, unemployment rate, user fees, and other socioeconomic indicators. The government
should carefully assess the accuracy of the actual or anticipated claim of inability-to-pay.
Evaluation by an outside expert or consultant may be necessary to fully evaluate the claim.
If the violator demonstrates an inability to pay the entire negotiated penalty in one lump
sum (usually within 30 days of consent decree entry), a payment schedule should be considered.
The penalty could be paid in scheduled installments with appropriate interest accruing to delayed
payments. Appropriate interest for a privately-owned PWS would be at least the existing prime
interest rate; for a municipal PWS, the appropriate interest rate would be at least equal to that
municipality's prevailing bond rate. The period allowed for such installment payments should
generally not extend beyond three years from the date of entry of the settlement or the issuance of
the final complaint for penalties.
If a payment schedule will not resolve the violator's ability-to-pay issue, as a last recourse,
the Agency can reduce the amount it seeks in settlement to a more appropriate amount in
situations hi which inability-to-pay can be clearly documented and reasonably quantified.
IV. SUPPLEMENTAL ENVIRONMENTAL PROJECTS (SEPS)
According to Agency policy,9 where the Agency has legal authority, violators may
perform environmentally beneficial projects in exchange for receiving a smaller settlement
penalty. In order for a violator to receive a penalty reduction hi exchange for performing such a
project, the Agency's SEP Policy, requires, inter alia that the project constitutes actions that go
beyond compliance (and which otherwise are not legally required) and, improves the injured
environment or reduces the total risk posed to public health or the environment by the violations.
If such projects are used, the provisions of the settlement must ensure that the project is
completed as expected, and that the designated funds for the project are expended.
Any penalty action that has the total cash payment amount reduced by inclusion of such a
SEP must be approved by the Office of Enforcement. The maximum penalty reduction for a SEP
shall not exceed the after-tax -net present value of the SEP.
Although SEPs help to fulfill EPA's goal of protecting and restoring the environment, the
existing Agency policy requires the assessment of a substantial monetary penalty in addition to
any SEP. A substantial monetary penalty is one that recaptures the violator's economic benefit of
noncompliance plus some appreciable (i.e., non-trivial) portion of the gravity component.
Evaluation as to whether particular types of SEPs are acceptable should be performed
based on the specifics of a particular case. The following are examples of such projects:
9 See EPA Policy on the Use of Supplemental Environmental Projects hi Enforcement
Settlements, transmitted on February 12,1991 by the Assistant Administrator for Enforcement,
or subsequent revisions.
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Pollution Prevention Projects. Pollution prevention projects would serve to
greatly reduce contamination of ground or surface water supplies in the
surrounding community and therefore enhance public health by improving the
quality of drinking water. Source water protection programs and wellhead
protection programs are examples of pollution prevention projects (and are
possible SEPS, if the public water system is not otherwise required to implement
the protection program).
Pollution Reduction Projects: These projects could involve enhanced treatment,
or earlier or increased monitoring for certain pollutants by the violator, beyond
measures required to come into compliance. For example, the. water system
owner/operator could start sampling for contaminants which are either in the
process of being regulated or not regulated (e.g., Phase VIb contaminants).
V. PLEADING - Other Types of Penalties
This policy only establishes how the Agency calculates the minimum penalty for which it
would be willing to settle a case. The development of the penalty amount to plead in an
administrative or judicial complaint is developed independent of this policy except to the extent
the Agency may not seek a settlement penalty in excess of the statutory maximum penalty it is
seeking in the complaint. Further, at trial the Agency will seek a penalty based on the statutory
maximum and the penalty factors which the court is instructed to consider. Of course, the
Agency will not use this settlement Penalty Policy in arguing for a penalty at trial or in an
administrative penalty hearing. In pleading for penalties in civil or administrative complaints,
please refer to guidance by the Office of Enforcement regarding the distinctions among pleading,
negotiating, and litigating civil penalties for enforcement cases.10 Although the 'aforementioned
guidance was written for cases brought under the Clean Water Act, it is also useful in Safe
Drinking Water Act actions.
VI. DOCUMENTATION AND RELEASE OF INFORMATION
Each component of the settlement penalty calculation (including adjustments) must be
clearly documented with supporting materials and written explanations in the case file and
provided to Headquarters for review and approval as required. Any subsequent
recalculations of the penalty based on new information must also be included in the file.
Documentation and explanations of a particular settlement penalty calculation constitute
confidential information that is exempt from disclosure under the Freedom of Information Act, is
10 See Guidance on the Distinctions Among Pleading, Negotiating, and Litigating Civil
Penalties for Enforcement Cases Under the Clean Water Act, OECM/OW, January 19,1989.
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outside the scope of discovery, and is protected by various privileges, 'including the attorney-
client privilege and the attorney work-product privilege. While individual settlement penalty
calculations are confidential documents, this penalty policy is a public document and may be
released to anyone upon request. - Further, as part of settlement negotiations between the parties,
the Agency may choose to release parts of the case-specific settlement calculations. The release
of such informa6on may only be used for settlement negotiations in the case at hand and, of
course-, may not be admitted into evidence in a trial or hearing.
This policy is purely for the use of U.S. EPA enforcement personnel in settling cases. EPA
reserves the right to change this policy at any time, without prior notice, or to act at variance
to this policy. This policy does not create any rights, implied or otherwise, in any third
parties.
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ATTACHMENT 1
PWSS SETTLEMENT PENALTY CALCULATION WORKSHEET
INSTRUCTIONS: For each type of violation (see Attachment 2) to be alleged in the
administrative or Judicial complaint calculate the statutory maximum penalty, the economic
benefit and gravity and record the results in Part A of the worksheet. Complete a separate Part A
worksheet for each type of violation, then complete Part B.
NAME OF CASE:
COMPLETED BY:
Date Completed:
PART A
IDENTIFY VIOLATION TYPE:
1 . STATUTORY MAXIMUM PENALTY FOR THIS VIOLATION TYPE
a. Length of violation (in days)
b. Penalty Amount (see II. Statutory Basis in text of Policy
for amounts)
c. Maximum Penalty
Cline 1 .a x line 1 .b if not administrative')
2. ECONOMIC BENEFIT FOR THIS VIOLATION TYPE
(attach BEN computer model printouts or other documentation)
3. GRAVITY FOR THIS VIOLATION TYPE
a. Gravity factor amount (from Attachment 2 Types of
Violations)
b. Service population
c. Months in violation f ) divided by 12
d. Gravity Component: Line3.axline3.bxline3.c
4. ECONOMIC BENEFIT + GRAVITY COMPONENT SUM
(line 2 + line 3.d)
ATTACHMENT 1
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PWS PENALTY CALCULATION WORKSHEET
PARTB
5. TOTAL ECONOMIC BENEFIT + GRAVITY
(Sum of amounts in line 4 for each violation type from all
Part A worksheets)
6. ADJUSTMENT FACTORS
a. Degree of Willfulness/Negligence factor (Select a factor
value between 1 .0 and 2.0)
b. Willfulness/Negligence Amount (line 5 x line 6.a)
c. History of Noncompliance factor (Select factor value
between 1 .0 and 2.0 based on number of prior enforcement
actions)
d. History of Noncompliance Amount (line 5 x line 6c)
e. Total of Upward Adjustment Factors dine 6.d x line 6.b)
7. PRELIMINARY PENALTY AMOUNT (line 5 + line 6.e)
8. LITIGATION CONSIDERATION REDUCTION AMOUNT
Attach legal explanation to justify any reduction on
separate sheet.
9. ABILITY TO PAY REDUCTION AMOUNT
Attach financial analysis to justify any reduction
10. CREDIT AMOUNT FOR ANY SEPS
Amount may not exceed after-tax present value of
Droiectfsl
11. BOTTOM-LINE CASH SETTLEMENT PENALTY
AMOUNT
Line 7 - (line 8 + line 9 + line 10)
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ATTACHMENT 2
TYPES OF VIOLATION
TYPE OF VIOLATION
Violation of section 1431 order
TCR SNC violation
Violation of section 1414 order
TCR acute MCL violation (fecal coliform present)
Nitrate MCL violation
Violation of Short Term Acceptable Risk level (e.g., chem/rad
SNC)
Total coliform rule MCL (fecal coliform not present)
Turbidity MCL violation
SWTR violation
Lead/copper SNC violation
Lead/copper treatment technique violation (excluding SNC
type violation)
Non-SNC MCLs (except for bacteria, turbidity, nitrate)
Monitoring or reporting SNC violations (other than total
coliform rule)
Failure to do public notification for any type of violation
Monitoring or reporting violations for SWTR
Monitoring or reporting violations for total coliform rule
Monitoring or reporting violations for nitrate
Monitoring or reporting violations for other acute
contaminants (other than bacteria, turbidity and nitrate)
Monitoring or reporting violations for "chronic" contaminants
GRAVITY FACTOR
2.5
2.4
2.4
2.3
2.2
2.1
2.0
1.9
1.8
1.8
1.7
1.6
2
6
1.5
1.4
1.4
1.3
1.2
1.1
17
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 82
Date Signed: June 1,1994
MEMORANDUM
SUBJECT: Requirement for a Public Water System Which Takes Fewer than Five Total
Coliform Samples per Month to Undergo a Sanitary Survey
FROM: Robert J. Blanco, Director
Enforcement and Program Implementation Division
TO: Drinking Water/Ground Water Protection Branch Chiefs Regions I - X
Over the past few months, a number of questions have arisen on the interpretation of the
requirement for public water systems which take less than five routine total coliform samples per
month to undergo a sanitary survey. Specifically, the questions revolve around: (1) what type of
violation should be reported if a system has been taking fewer than five samples per month and
fails to have a sanitary survey conducted; (2) when does a violation begin; and (3) how such a
system can return to compliance. This memorandum provides guidance on these issues.
The Total Coliform Regulation at 40 CFR 141.21(d) states:
Public water systems which do not collect five or more routine samples/month must
undergo an initial sanitary Survey by June 29,1994, for community public water systems
and June 29,1999, for non-community Water systems.
Sanitary surveys must be performed by the State or an agent approved by the State. The
system is responsible for ensuring the survey takes place.
The Total Coliform Rule Implementation manual (March 1991) addressed these issues.
On page 8, the manual states:
The State must report if a required Sanitary Survey to support reduced monitoring was
not conducted. Please note that a contaminant code cannot be specified for this type of
violation. Failure to have a Sanitary Survey conducted must be reported as summarized
below:
Contaminant Code: Not applicable - Do not report
Violation Type: 28 - Failure to have a Sanitary Survey Conducted
Begin Date: The first day of the compliance period.
Duration: Depends on State requirements.
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WSG 82
Pages D-25 though D-27 of Appendix D of the Implementation Manual deals with FRDS
reporting and provides detailed guidance and examples of reporting this violation. 1 have
attached those pages for your information.
In addition, the Question and Answer Section of the Implementation Manual dealt with
this topic:
Question: Which systems are subject to sanitary surveys?
Answer: Sanitary surveys must be conducted for systems which collect fewer than 5
samples/month.... Systems can monitor at a frequency of 5 samples/month
to avoid sanitary surveys .... the rule does not require systems taking 5 or
more samples per month to have sanitary surveys performed.
The survey provision has frequently been misinterpreted as requiring all smaller
community water systems (those with a population of less than 4,100), and all noncommunity
systems to conduct a sanitary survey. The survey requirement is not tied to system size, type, or
to the number of samples that the system is required to take [as per 5141.21(a)]. Rather, the
survey requirement is tied to the number of samples that the system actually collects: "public
water systems which do not collect five or more routine samples/month must undergo an initial
sanitary survey... " In effect, the rule offers CWSs serving fewer than 4,100 people and all
NCWSs an option: a) conduct a sanitary survey, or b) increase coliform monitoring to at least 5
samples/month.
While the questions that we have been asked focus on community water systems, we
want to be clear that the "option" of survey vs. sampling applies to non-community as well as
community systems. The only difference between the two system types is the date by which the
option must be exercised - June 29,1994 for CWSs and June 29,1999 for NCWSS.
Unfortunately, the regulation is not clear on the issue of when a system which opts for
increased monitoring must begin to collect 5 samples/month. A strict interpretation would be
that systems should have made the choice as soon as the Total Coliform rule became effective
(i.e., December 1990). While the preambles to both the proposed and final rules would seem to
support this interpretation the regulation itself is not explicit. What we believe is clear in the
regulation, however, is that the choice must be exercised no later than June 29,1994 for CWSS,
and June 29,1999 for NCWSS. As of the last day of June of those respective years, the affected
systems must either have had a survey conducted, or have begun taking (during the June .
compliance period), and continue taking, coliform samples at a rate of 5/month. I stress the
requirement to continue taking 5 samples/month because once the system makes the choice to
increase its monitoring, it must monitor at that increased rate unless, or until, it undergoes a
sanitary survey.
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WSG 82
If neither of the above requirements are met the system is in violation of the regulations.
Further, any system which opts for increased monitoring but falls below the minimum of 5
samples/month sometime in the future, will also be in violation of the regulations as of the month
that the reduced monitoring occurred. As noted in the Total Coliform Implementation Manual,
and discussed earlier in this memo, these violations should be reported as a violation of the
sanitary survey requirement at 40 CFR 141.21 (d). The violation need be reported only once.
There can only be one sanitary survey violation every five years for CWSs and one every ten
years for NCWSS. A system which has incurred such a violation can return to compliance either
by:
- having a survey conducted, or
- increasing its routine monitoring to at least 5 samples a month. [This increased
monitoring would apply until a survey is conducted.].
Finally, when the definition of significant noncompliance (SNC) for the total coliform
rule was established, there was no provision made for an SNC for a sanitary survey violation
since the date of violation was so far in the future. Now that the June 1994 deadline is upon us, I
would like your opinion on whether we should establish SNC criteria for a sanitary survey
violation. As I see it, establishing an SNC definition for this type of violation would clearly
demonstrate that EPA (and the States) believe in the importance of sanitary surveys. However, I
recognize the competing demands of implementing and enforcing the program. I would like your
opinions on this issue and, if you support the creation of an SNC definition for this type of
violation, what that definition should be. Please send your comments on this issue by June 17 to
Betsy Devlin, who can be reached at (202) 260-5550 [telephone] or (202) 260-4656 [fax].
I hope that this clarifies the interpretation of this regulation. Should you have Any
questions, please contact Betsy Devlin at (202) 260-5550 or Ray Enyeart at (202) 260-5551.
Attachment
cc: PWSS Section Chiefs
PWSS Enforcement Coordinators
FRDS Coordinators
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WSG82
C. Sanitary Survey M&R Violations
A sanitary survey M&R violation is issued to PWSs that fail to have a sanitary survey
conducted at the required frequency.
1. FRDS-II Input Format
When reporting to FRDS in DTF format, the primacy agency must provide the following
data:
i-> • ri
No.
C101
cnoi
C1105
C1107
Cllll
Name Description
PWS-ID
VIO-ID
VIO-TYPE
VIO-COMP-PERIOD-BEGIN-DATE
(See note #1, page D-26)
VIO-COMP-PERIOD-MONTHS
The PWS ID number
An ID for the violation
The violation type
The date the compliance
period began
The duration of the
compliance period in months
Comment/
Value
28
mmddyy
42, 50, 102,
120
(See note #2
page D-26)
The primacy agency may optionally report the following data:
=Data Element:
No. Name Description Comment/Value
Instead of reporting Cl 111, VIO-COMP-PERIOD-MONTHS,
Report:
C1109 VIO-COMP-PERIOD-END-DATE The date the compliance mmddyy
period ended
Figure 17 illustrates a completed FRDS-II data capture form for reporting a sanitary
survey monitoring and reporting violation. Figure 18 illustrates the FRDS-II DTF transactions
which equate to the completed data capture form. Refer to FRDS-II Data Entry Instructions
documentation for further details.
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WSG82
Notes:
1 - For purposes of illustration, the scenario and example below assumes that the State has
adopted the NPDWR sampling dates, frequencies, etc. by reference. Of course, if the
State chooses, they can adopt more stringent requirements.
To illustrate what must be reported to FRDS for the compliance period begin date,
consider the following:
A PWS collecting fewer than 5 routine samples per month must undergo an initial
sanitary survey by June 29,1994 (for CWSS), or by June 29,1999 (for NCWSS).
Thereafter, the system must undergo another sanitary survey every five years (ten years
for NCWSs using only protected and disinfected groundwater) after the initial sanitary
survey.
A community PWS that regularly collects 3 routine samples per month (a system that
serves between 2,501 and 3,300 persons) has an initial sanitary survey conducted on May
31,1992. Its next sanitary survey must be conducted by no later than May 30,1997
(within 5 years of the date of the initial sanitary survey).
If we assume that the systems second sanitary survey was not conducted by May 30,
1997, a sanitary survey M&R violation must be reported to FRDS with a compliance
period begin date of June 1,1992. This is one day after the initial sanitary survey was
conducted, and it is the first day of the compliance period for which a sanitary survey was
not conducted. The violation would be given a compliance period duration of 60 months.
2- Since the effective date of the TCR regulation is January, 1991, the community PWS
deadline of June 29,1994, is 42 months after the effective date of the rule, and the non-
community water system deadline of June 29,1999, is 102 months after the effective
date.1
Therefore, for systems that fail to have the initial sanitary survey conducted, the
compliance period duration would be a maximum of 42l months for community PWSs, or
a maximum of 1021 months for non-community PWSs.
For systems that fail to have a subsequent sanitary survey conducted (after the initial
sanitary survey period), the compliance period duration would be 601 months (1201
months for NCWSs using only protected and disinfected groundwater).
1 At State discretion, more stringent requirements can be adopted. If a State adopts more
stringent requirements, the compliance period durations of 42,102,60, and/or 120 months would
be replaced, as appropriate, with the more stringent State specific values.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 83
Date Signed: January 14,1994
MEMORANDUM
SUBJECT: Corrected Attachment I for PWSS Settlement Penalty Calculation Worksheet
FROM: Kathy Summerlee, Deputy Director
Water Enforcement Division
Office Of Regulatory Enforcement, OECA
TO: Regional Water Management Division Directors
Regional Counsels
On May 25,1994, under signature of Jim Eder and Fred Stiehl, we distributed the
Agency's New Public Water System Supervision Program Supplement Penalty Policy.
Attachment 1 to the Penalty Policy contained a two part worksheet setting forth in summary form
how to perform the penalty calculation. The worksheet erroneously had the adjustment factors
for degree of wilfulness and history of noncompliance applying to the combined gravity and
economic benefit amount. This was a mistake as the text of the policy clearly has these two
adjustment factors apply only to the gravity amount.
We have corrected the worksheet to make it fully consistent with the Policy. We have
made several other minor clarifying changes to the worksheet. There are no changes to the text
of the policy. We would appreciate if you would discard the prior worksheet and substitute the
attached corrected worksheet.
Thank you for your assistance. If you have any changes, you may call David Hindin, 202
501-6004, Andy Hudock, 201 501-6032, or Betsy Devlin, 202 260-5550.
Attachment
cc: (w/attachment)
ORC Water Branch Chiefs
Regional PWSS Branch Chiefs
ORE Water Division staff
PWS Regionals Attorneys
John Cruden, DOJ
Joel Gross, DOJ
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WSG83
ATTACHMENT 1 (Corrected 6/14/94)
PWSS SETTLEMENT PENALTY CALCULATION WORKSHEET
INSTRUCTIONS: For each type of violation (see Attachment 2) to be alleged in the
administrative or Judicial complaint calculate the statutory maximum penalty, the economic
benefit and gravity and record the results in Part A of the worksheet. Complete a separate Part A
worksheet for each type of violation, then complete Part B.
NAME OF CASE:
COMPLETED BY:
Date Completed:
PART A
IDENTIFY VIOLATION TYPE:
1. STATUTORY MAXIMUM PENALTY FOR THIS VIOLATION TYPE
a. Length of violation (in days)
b. Penalty Amount (see II. Statutory Basis in text of Policy for
amounts)
c. Maximum Penalty Cline 1. ax line l.b if not administrative")
2. ECONOMIC BENEFIT FOR THIS VIOLATION TYPE (attach BEN
computer model printouts or other documentation)
3. GRAVITY FOR THIS VIOLATION TYPE
a. Gravity factor amount (from Attachment 2 Types of Violations)
b. Service population
c. Months in violation ( ) divided by 12
d. Gravity Component: Line 3. a x line 3. bx line 3. c
4. ECONOMIC BENEFIT + GRAVITY COMPONENT SUM
(line 2 + line 3.d)
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WSG83
ATTACHMENT 1 (corrected 6/14/94)
PWS PENALTY CALCULATION WORKSHEET
PARTS
5.
TOTALS FROM ALL PART A WORKSHEETS (for each violation type)
a. Sum of amounts in line 3. d from all Part A worksheets (total
gravity for all violation types)
b. Sum of amounts in line 2 from all part A worksheets (total
economic benefit for all violation types)
6.
GRAVITY ADJUSTMENTS
a. Degree of Willfulness/Negligence factor (Select a factor value
between 1.0 and 2.0)
b. History of Noncompliance factor (Determine factor value based
on instructions on page 7 of policy)
c. Total Adjusted Gravity Amount
dine 6.a x line 6.b x line S.aV)
7.
8.
9.
PRELIMINARY PENALTY AMOUNT (line 5.b + line 6.c)
LITIGATION CONSIDERATION REDUCTION AMOUNT
Attach leeal explanation to iustifv anv reduction on separate sheet.
ABILITY TO PAY REDUCTION AMOUNT
Attach financial analysis to justify any reduction on a separate
sheet.
10. CREDIT AMOUNT FOR ANY SEPS
Amount mav not exceed after-tax present value of DroiectfsV
11
. BOTTOM-LINE CASH SETTLEMENT PENALTY AMOUNT
Line 7 - (line 8 + line 9 + line 10)
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WSG83
PWSS Civil or Complaint for Penalty Calculation Worksheet
I. Calculate Statutory Maximum Penalty
(A) Length of Violation (in days)
(B) Maximum Penalty
Complaint for Penalty - $5,000
Civil Penalty - $25,000/day
Section 1431 orders - $5,000/day
STATUTORY MAXIMUM PENALTY
(If not an administrative Penalty, AxB)
II. Calculate Economic Benefit Component
Determine avoided and delayed costs through BEN model or
other reasonable methodology. This must be documented
III. Calculate Gravity component
(C) Actual or Possible Harm to Human Health
Level 1-1.1-1.5
Level 2-1.6-2.0
Level 3-2.1-2.5
Population
Months in violation
Years in violation
(D) Duration of Non Compliance
GRAVITY COMPONENT (CxD)
(no less than $1,000 in civil judicial and for PWSs serving
over 3,300 people in administrative cases)
ECONOMIC BENEFIT + GRAVITY COMPONENT
IV. Adjustment Factors
(E) Degree of Willingness or Negligence (1.0 - 2.0)
(F) History of Non Compliance
(a factor between 1.0 and 1.3 for each enforcement action issued)
5220
$25,000
$130,500,000
$4,300
2.4
1200
174
14.50
17400
$41,760
$46,060
1.0
1.58
PRELIMINARY SETTLEMENT AMOUNT
$70,300
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WSG83
(H) Ability to pay (to decrease penalty),
(Amount of money) ^
(I) Litigation Considerations
(0.01 - 0.5,1)
FINAL SETTLEMENT AMOUNT
(Preliminary Settlement Amount - H) x 1 -1
Months in Violations in last 5 years 36
Years in violation in last 5 years 3.0
Municipality and Nonprofit Assoc.
Litigation Consideration $12,900
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG84
Date Signed: August 1994
State Reporting Guidance for Unregulated Contaminant Monitoring
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
812-B-94-001
NCEPI#:
812/B-94-001
This guidance will need to be updated.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 85
Date Signed: October 20,1994
MEMORANDUM
SUBJECT: Schedule for Reduced Monitoring under the Lead & Copper Rule
FROM: Robert J. Blanco, Director
Drinking Water Implementation Division (4604)
TO: Ground Water & Drinking Water Branch Chiefs
Regions I - X
It has come to my attention that some confusion, exists among the regulated community,
States, and Regions regarding the reduced monitoring frequency provisions under the Lead &
Copper regulation. The purpose of this memorandum is to provide some clarification on one of
those provisions.
The Lead & Copper Rule (LCR) requires small and medium-sized systems to conduct
two initial rounds of tap Monitoring. For medium-sized systems, the first round was to be
conducted during the 6-month period 7/1/92 to 12/31/92, followed by a second round to be
conducted during the following 6-month period of 1/1/93 to 6/30/93. The first round of
monitoring for small-sized systems was to occur during 7/1/93 to 12/31/93, with the second round
being conducted between 1/1/94 and 6/30/94. The LCR goes on to say that small or medium-
sized systems which did not exceed the action level during either of their two initial rounds of
monitoring may reduce their sampling frequency to once per year. The rule does not specify,
however, when this "yearly", or "annual", monitoring period begins or ends. The only time-
related requirement of the rule regarding reduced monitoring is that the monitoring, be conducted
during the months of June, July, August, or September.
Apparently, a few States believed the only acceptable compliance monitoring period was
one based on a July 1 to June 30 timeframe. While this is a logical extension of the initial
monitoring dates, it creates a discontinuous monitoring window - July, August, and September at
the beginning of the annual period, and June at the end of the period.
While a July to June compliance period is perfectly acceptable, we believe a compliance
period that allows for a consecutive 4-month monitoring window is also appropriate: e.g., one
based on calendar years, January 1 through December 31. Such a compliance window may make
State scheduling and tracking easier, and be less confusing to water supplies.
States which have already established July to June compliance periods may want to
consider shifting to a calendar period. While such a change would mean that analytical
information for some systems would be delayed for one, two, or three more months (i.e., rather
than completing the analyses by June 30, systems would have until September 30 to complete the
work), I believe the positive aspects provided by a calendar period outweigh the losses. I ask that
you let the States in your Region know that such an approach is acceptable and that they may
adopt it if they choose.
If you have any questions or concerns about this issue, please call me at (202) 260-5522
or have your staff call Judy Lebowich at (202) 260-7595.
I
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
NewWSGSSA
Date Signed: January 10,1992
MEMORANDUM
SUBJECT: Consecutive Systems Regulated Under the National
Primary Drinking Water Regulations for Lead and Copper
FROM: Jeff Cohen, Chief
Lead Task Force
Office of Ground Water and Drinking Water
TO: Regional Drinking Water Branch Chiefs
Several States and public water systems have proposed consolidation of lead and copper
tap water sampling, and water quality parameter sampling, in consecutive water systems under
§141.29. After reviewing the proposals submitted by Michigan, Massachusetts, and several
water suppliers hi Colorado, we believe it is reasonable to reduce monitoring in consecutive
systems if the systems can demonstrate they are interconnected in a manner that justifies treating
them as a single system.
We recognize the burdens on water systems and States to comply with and implement the
lead and copper rule. We encourage innovative implementation approaches that will meet the
goals and intent of this regulations. We also believe that to insure effective state/EPA
partnerships, it is important that proposals to consolidate consecutive systems clearly identify
which systems will be held accountable for violations of any of the rule's requirements. Should
enforcement actions ever become necessary, it is vital that the party responsible for monitoring,
or, if needed, subsequent treatment (including public education and lead service line
replacement) be clearly identified and accept responsibility for any rule violations.
Specifically, prior to allowing consecutive systems to consolidate their sampling, the state
must submit to its EPA regional office a written explanation of how the monitoring, treatment,
and reporting requirements will be administered and enforced in consecutive systems that
consolidate their operations for lead and copper. It is incumbent upon the regional offices to
agree to each State's proposal in writing and have that agreement in place before the regulatory
requirements become effective.
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NewWSG90
To varying degrees, the proposals that have been submitted up until now have provided
rationale for reduced monitoring, and explanations of responsibilities among the communities
involved. We believe that future proposals and agreements between States and consecutive
systems should explain which water system is responsible for collecting and reporting to the
State the results of lead and copper tap water monitoring, and all water quality parameter
monitoring.
In addition, future proposals and agreements should include explanations of how the
following provisions in the lead and copper rule will be modified:
• determination of 90th percentile lead and copper concentrations in the
consolidated system;
• water quality parameter monitoring to determine baseline values and insure that
optimal corrosion control treatment is properly installed and maintained; and
• source water monitoring when needed.
In the preamble to the final rule, we have stated that responsibility for public education
delivery resides with the retailer (the consecutive, or "satellite" system), and responsibility for
source water monitoring and treatment resides with the wholesaler (or "parent" system). Any
modifications in these responsibilities should be clear in the State proposal and EPA/State
agreement.
With respect to the other treatment technique requirements, State proposals should
identify the system that will be responsible for completing the corrosion control treatment
requirements under §§141.81 and 141.82. We expect that the parent supply will take
responsibility for corrosion control throughout the entire area served. Depending upon
contractual agreements, the size and configuration of the satellite system(s), and the distance
from the parent treatment facility, individual corrosion control treatment may need to be installed
at a point or points other than the parent plant. State proposals should also define responsibility
for lead service line replacement, where it may be necessary.
If you have any questions, please feel free to call me at (FTS) 260-5456.
cc: Jim Elder Peter Cook
Bob Blanco Clive Davies
Connie Bosnia ASDWAHDQTRS
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG86
Date Signed: March 3, 1995
MEMORANDUM
SUBJECT: Processing Requests for Use of Enforcement Discretion
FROM: Steven A. Herman
Assistant Administrator
TO: Assistant Administrators
Regional Administrators
General Counsel
Inspector General
In light of the reorganization and consolidation of the Agency's enforcement and
compliance assurance resources activities at Headquarters, I believe that it is useful to recirculate
the attached memorandum regarding "no action" assurances1 as a reminder of both this policy
and the procedure for handling such requests. The Agency has long adhered to a policy against
giving definitive assurances outside the context of a formal enforcement proceeding that the
government will not proceed with an enforcement response for a specific individual violation of
an environmental protection statute, regulation, or legal requirement. This policy, a necessary
and critically important element of the wise exercise of the Agency's enforcement discretion, and
which has been a consistent feature of the enforcement program, was formalized in 1984
following Agency-wide review and comment. Please note that OECA is reviewing the
applicability of this policy to the CERCLA enforcement program, and will issue additional
guidance on this subject.
A "no action" assurance includes, but is not limited to: specific or general requests for
the Agency to exercise its enforcement discretion in a particular manner or in a given set of
circumstances (i.e., that it will or will not take an enforcement action); the development of
policies or other statements purporting to bind the Agency and which relate to or would affect the
Agency's enforcement of the Federal environmental laws and regulation; and other similar
requests for forbearance or action involving enforcement-related activities. The procedure
established by the Policy requires that any such written or oral assurances have the advance
written concurrence of the Assistant Administrator for Enforcement and Compliance Assurance.
The 1984 reaffirmation of this policy articulated well the dangers of providing "no
action" assurances. Such assurances erode the credibility of the enforcement program by creating
real or perceived inequities in the Agency's treatment of the regulated community. Given limited
Agency resources, this credibility is a vital incentive for the regulated community to comply with
1 Courtney M. Price, Assistant Administrator for Enforcement and Compliance
Monitoring, Policy Against "No Action" Assurances (Nov. 16,1984) (copy attached)
1
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WSG86
existing requirements. In addition, a commitment not to enforce a legal requirement may
severely hamper later, necessary enforcement efforts to protect public health and the
environment, regardless of whether the action is against the recipient of the assurances or against
others who claim to be similarly situated.
Moreover, these principals are their most compelling in the context of rulemakings: good
public policy counsels that blanket statements of enforcement discretion are not always a
particularly appropriate alternative to the public notice-and-comment rulemaking process.
Where the Agency determines that it is appropriate to alter or modify it's approach to specific,
well-defined circumstances, in my view we must consider carefully whether the process
(especially where the underlying requirement was established by rule under the Administrative
Procedures Act), or through piecemeal expressions of our enforcement discretion.
We have recognized two general situations hi which a no action assurance may be
appropriate: where it is expressly provided for by an applicable statute, and in extremely unusual
circumstances where an assurance is clearly necessary to serve the public interest and which no
other mechanism can address adequately. In light of the profound policy implications of the
granting of no action assurances, the 1984 Policy requires the advance concurrence of the
Assistant Administrator for this office. Over the years, this approach has resulted in the
reasonably consistent and appropriate exercise of EPA's enforcement discretion, and in a manner
which both preserves the integrity of the Agency and meets the legitimate needs served by a
mitigated enforcement response.
There may be situations where the general prohibition on no action assurances should not
apply under CERCLA (or the Underground Storage Tanks or RCRA corrective action programs).
For example, at many Superfund sites there is no violation of law. OECA is evaluating the
applicability of no action assurances under CERCLA and RCRA and will issue additional
guidance on the subject.
Lastly, an element of the 1984 Policy which I want to highlight is that it does not and
should not prelude the Agency from discussing fully and completely the merits of a particular
action, policy, or other request to exercise the Agency's enforcement discretion in a particular
manner. I welcome a free and frank exchange of ideas on how to best respond to violations,
mindful of the Agency's overarching goals, statutory directives, and enforcement and compliance
priorities. I do, however, want to ensure that all such requests are handled in a consistent and
coordinated manner.
Attachment '
cc: OECA Office Directors
Regional Counsels
Regional Program Directors
Note: The attachment referred to hi this guidance is WSG 24 of this manual.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG87
Date Signed: April 4,1995
MEMORANDUM
SUBJECT: All Plastic Systems - Compliance with the Lead and Copper Rule
FROM: Robert J. Blanco, Director
Drinking Water Implementation Division (4604)
TO: 0. Thomas Love, Chief
Water Supply Branch (6W-S), Region 6
You raise an important issue concerning small system compliance with the Lead and
Copper Rule. During the initial round of monitoring many so called "all plastic systems" in
mobile home parks were identified throughout Region 6. These systems are free of brass faucets,
lead service lines, lead solder pipe joints and other sources of lead contamination within the
system itself. You request relief, from a common sense and public health standpoint, from initial
monitoring requirements so long as the State and/or water supplier can demonstrate that source
waters are not subject to lead contamination.
In the promulgation process for this rule, the Agency considered waiving monitoring
requirements for "all plastic" systems. At that time, brass faucets that could leach lead were
ubiquitous and consequently, truly lead-free systems (including household plumbing
components) would have been rare. Since we felt it would be necessary for States to have some
proof that the system was lead-free (which would have meant inspections on the part of the
system or State, with the accompanying administrative burdens), we felt that it was probably
easier and cheaper for small systems to collect the required 5 tap samples as a better way to
demonstrate they were free of any lead problemsT'
The current situation reduces any concern that may have existed then. A large part of the
faucet industry has switched to low lead or lead-free faucets. This trend will continue as the
industry strives to meet the recently established NSF standard for lead leaching from faucets.
We believe that the existence of so-called "all plastic" systems can now be more reliably
established.
When the Lead and Copper Regulation was written for this treatment technique, we
attempted to balance health protection, flexibility and ease of implementation against many
diverse interests promoting their individual proposals and the inherent complexities in regulating
a by-product of household plumbing corrosion. We were well aware that we could not anticipate
1
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WSG 87
every conceivable situation arising and expected that some degree of judgment and discretion
would have to be exercised by the regulatory agent. For this reason, the regulation purposely
remained silent on the "all plastic system" issue.
From the description you share hi your draft memo, I conclude that the Region 6 States
are doing much of the lead and copper monitoring for small systems, and the State laboratory
workload (not just for lead and copper) is ballooning to unmanageable levels as a result of
backlogged samples. This situation is becoming fairly commonplace across the country and is
one of several reasons why commercial laboratory services are attractive to other States. Given
the priority of these "all plastic systems" in the context of the full State drinking water program
and available resources to carry out primary enforcement responsibilities, monitoring for lead in
these systems appears quite low from a practical standpoint.
With the circumstance you describe (i.e., no obvious source of contamination within
these systems) and a commitment from the State to eliminate source waters as a means of lead
contamination, I see no value to investing limited resources on a situation that appears to be non-
existent. Such resources should be redirected to areas of the program where the potential of
higher public health risk exists.
--•••- • .... •.•••**•»"' ' ^-iS'>*"*iefc«.--.<-rV. ";;»"*•.-.•
As you assist your States in implementing the Lead and Copper Rule, they should be
aware of the need to formally establish the basis in each case where the decision not to require
initial monitoring was made. We plan to follow up to include this issue in our plans to revise and
clarify the LCR. A proposed rule should reach the Federal Register later this year.
Because other Regions and States may share similar problems and concerns, I am taking
the liberty of providing them with a copy directly.
cc. Ground Water/Drinking Water Branch Chiefs, Regions 1-5,7-10
Cynthia Dougherty
Peter Cook
Connie Bosma
Carl Reeverts
Betsy Devlin, OECA
Lee Schroer, OGC
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WSG 88 is outdated and has been deleted.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 89
Date Signed: June 1995
Information Collection Requirements Rule—Protozoa and Enteric Virus Sample Collection
Procedures (pocket guide)
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#: • '
814-B-95-001
NCEPI #:
814/B-95-001
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG90
Date Signed: June 26,1995
MEMORANDUM
SUBJECT: Revised Uses, Distribution, and Timing of Indian Land PWSS Grant Funds
FROM: Robert J. Blanco, Director
Drinking Water Implementation Division (4604)
TO: Ground Water/Drinking Water Branch Chiefs, Regions I-X
Thank you for your comments to my February 16,1995, memorandum discussing
tentative changes in the way in which the three percent set-aside of PWSS grant funds for
program implementation on Indian Lands is distributed and utilized. Most of the comments
supported the planned changes. A summary of the new process is attached for your information.
We will implement it in FY 1996.
The new approach differs from the current one in three major respects. First, assuming
no significant increase in the number of Tribes receiving program development or primacy
grants, the size of the Headquarters reserve will be reduced significantly. We will now make
decisions about funding Headquarters-managed grants (such as the current grants to NAWA and
NETA) and support for Alaskan Native Villages at the start of each fiscal year. The
Headquarters reserve will consist of funding for these activities, if any, plus a contingency fund
of 10 percent of the total Indian-Land set-aside. The funding needed to cover known Tribal
program development and primacy grants (such as Standing Rock Sioux and the Navajo Nation)
and any funds to support Alaskan Native Villages will be adviced to the appropriate Regions
early in the fiscal year, along with the distribution of the rest of the set-aside. At current levels,
the size of the Headquarters reserve will be reduced by approximately 70 percent.
The second major change affects the distribution of the Indian Land funds among the
Regions. Starting in FY 1996, we will base 100% of the Regional distribution on the Indian
Land formula. As such, both the Fall allotment, and any Spring reallotment, will be based solely
on Indian lands, populations,, and water system inventories. The Fall allotment will provide for a
minimum to Regions with Federally-recognized Tribes—the greater of $30,000 or 2 percent of
the available funds—any Spring reallotment will not.
The final major change is our policy on use of the Indian Land funds. Effective with the
FY 1996 distribution, we expect Regions to use their allotments strictly for support of their
Indian Land activities, i.e., for direct implementation of the PWSS program on Indian Lands, for
grants to Tribes to build their capacity to operate Tribal PWSS programs, and for other PWSS
related Indian Land activities. We will track the use of the funds and plan to reduce the size of
subsequent allotments to those Regions which are not using the funds for PWSS Indian Land
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WSG90
activities, unless the Region has specific plans to increase its Indian Land activities during the
fiscal year. Any such funds will be redirected to Regions that have additional need for Indian
Land PWSS program support. •
Three Regions expressed concern about basing 100% of the allocation on the Indian
Lands formula and the loss of flexibility to use the funds for non-Indian Lands purposes. I am
sensitive to these concerns. Nevertheless, I believe the changes are appropriate, given the
growing need for Indian Land funds and the ability of most Regions to effectively use increased
funds for Indian Land activities. At the same time, I recognize that Regions with small Indian
Land programs may be precluded from expanding their activities if the size of the Regional
allotment is reduced based on prior year utilization. In such cases, we will take the Region's
plans for expanding Indian Land activities into consideration when deciding whether to reduce
the size of a Region's allocation.
This revised process gives you use of most of the set-aside early in the fiscal year and I
believe'it will result in a more effective utilization of this resource for PWSS program
implementation on Indian Lands. If you have any questions, please give me a call on 202-260-
5522 or have a member of your staff contact Judy Lebowich on 202-260-7595.
Attachment
cc: Cynthia Dougherty
Terry Williams, AIEO
PWSS Section Chiefs, Regions I-X
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WSG 90
ALLOCATION OF 3% SET-ASIDE
FOR PWSS IMPLEMENTATION ON INDIAN LANDS
Beginning Fiscal Year 1996
Fall
• After consultation with Regions,1 HQ makes decisions about funding HQ managed
grants/contracts for PWSS program implementation support on Indian Lands (e.g.,
NAWA and NETA grants for training/TA).
• 10% of the total Indian Land set-aside,2 plus amount needed to fund HQ managed grants,
if any, retained in HQ Reserve.
• HQ makes decisions about support for Alaskan Native Villages. These funds, if any, plus
funds needed to fund known3 Tribal PWSS program development/primacy grants adviced
'. Jo Regions as part of Fall allotment.
• Remaining funds allotted to Regions with Federally-recognized Tribes based on PWSS
Indian Lands formula.
- Regions with Tribes receive a minimum of $30,000 or two percent of available
funds, whichever is greater.4
- Allowable uses are direct implementation of the PWSS program on Indian Lands,
grants to Tribes to build their capacity to operate Tribal PWSS programs, and
other special PWSS Indian Land activities.
SPRING
Any funds remaining in HQ reserve distributed among Regions with Federally-
recognized Tribes based on Indian Lands formula (without Regional minimum).
'Regional recommendations will be requested in the September time-frame. HQ will
make final decisions based on Regional input plus HQ policy considerations.
2To be used to fund Tribal PWSS program development/primacy grants received during
the fiscal year, special PWSS Indian-related activities, and other PWSS contigencies.
3Based on approved applications and complete applications under review in the Regions.
Population, land area, and PWSs associated with these Tribes are subtracted from the Regional
total in the PWSS Indian Lands Formula.
4Starting with the FY 1997 allocation, HQ plans to reduce the size of a Region's
allotment by the amount not used by the Region in the previous fiscal year for PWSS Indian
Land activities, unless the Region has specific plans for increasing its Indian Land activities
during the fiscal year. Any such funds will be redirected to Regions that have additional need for
Indian Land PWSS program support.
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WSG 91-100
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 91
Date Signed: November 22, 1995
MEMORANDUM
SUBJECT: Policy on Flexible State Enforcement Responses to Small Community Violations
FROM: Steven A. Herman
Assistant Administrator
TO: Assistant Administrators
General Counsel
Regional Administrators
Deputy Regional Administrators
Regional Counsel
Regional Enforcement Coordinators
The attached Policy on Flexible State Enforcement Responses to Small Community
Violations (Small Communities Policy) implements parts of Reinventing Environmental
Regulation Initiatives 13 and 21 announced by President Clinton on March 16,1995. These two
initiatives seek to enhance the environmental compliance of small communities and to promote
alternative strategies for communities to achieve environmental and economic goals.
Specifically, the Small Communities Policy seeks to assure States that they have, within
appropriate limits, the flexibility to design and use multimedia compliance assistance and
compliance prioritization measures as alternatives to traditional enforcement responses when
addressing a small community's environmental violations. The Small Community Policy
establishes the parameters for State small community environmental compliance assistance
programs that EPA will generally consider adequate and recommends options for States to
follow in developing and implementing their programs, but leaves many of the details to the
discretion of States. EPA believes this approach will ensure adequate protection of public health
and the environment while affording States flexibility to develop small community
environmental compliance assistance programs tailored to local conditions and specific State
needs.
Please note that this policy does not mandate action on the part of States, States are free
to offer compliance assistance or not. Should States choose, however, to offer environmental
compliance assistance to small communities, those doing so in a manner consistent with the
framework provided JQ this policy can generally expect EPA to defer to their actions.
, :'•". '. ••"•'• '• i t'*^tojijfcii)iLtn.f"r'' '-••••*L " ': • •---. • - r"- '•?:•'•' "•:"• ••••.• •• . •
I wish to thank the many commenters who reviewed the June 30,1995 draft policy and
provided comments. The policy I issue today is a better document because of your efforts. If
you have questions or further comments, please contact Kenneth Harmon of the Chemical,
Commercial Services and Municipal Division at (202) 564-4079.
Attachments
cc: Small Community Coordinators, Regions I-X
1
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WSG91
Policy on Flexible State Enforcement Responses
To Small Community Violations
United States Environmental Protection Agency
November 1995
This policy expresses EPA's support for States" use of enforcement flexibility to provide
compliance incentives for small communities. EPA acknowledges that States and small
communities can realize environmental benefits by negotiating, entering into, and implementing
enforceable compliance agreements and schedules that require communities to correct all of their
environmental violations expeditiously while allowing the community to prioritize among
competing environmental mandates on the basis of comparative risk2. States may provide small
communities an incentive to request compliance assistance by waiving part or all of the penalty
for a small community's violations if the criteria of this policy have been met. If a State acts in
accordance with this policy and addresses small community environmental noncompliance with
compliance assistance in a way that represents reasonable progress toward compliance, EPA
generally will not pursue a separate Federal civil administrative or judicial action for penalties or
additional injunctive relief. • .
This policy does not apply to any criminal conduct by small communities or their
employees. To the extent that this policy may differ from the terms of other applicable
enforcement response policies, this document supersedes those policies.
Flexible State Enforcement Responses
EPA's deference to a State's exercise of enforcement discretion in response to a small
community's violations will be based on an assessment of the adequacy of the process the State
establishes and follows hi:
1 This policy will also apply to the actions of territories and to the actions of Native
American Tribes where conditions have been met for EPA to treat the Tribe as a State.
2 EPA currently has a number of risk assessment resources available to the public,
including its computer-based Information Risk Information System (IRIS). EPA comparative
risk projects across the country have provided training and technical assistance to more than 45
State, local, tribal and watershed risk assessment efforts hi an attempt to bring together
stakeholders to reach consensus on which local environmental problems pose the most risk to
human health, ecosystem health, and quality of life; and to develop consensus on an action plan
to reduce those risks. EPA does not suggest that States and small communities need prepare a
formal comparative risk assessment as part of the small community environmental compliance
assistance process.
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WSG 91
• responding expeditiously to a community's request for compliance assistance;
• selecting the communities to which it offers compliance assistance and a flexible
enforcement response;
• assessing the community's good faith and compliance status;
• establishing priorities for addressing violations; and
• ensuring prompt correction of all environmental violations.
EPA will give its deference more readily to a State that has previously submitted a
description of its small community environmental compliance assistance program to the Agency,
thereby allowing EPA to familiarize itself with the adequacy of the State's processes.
Selecting communities
EPA intends this policy to apply only to small communities unable to satisfy all
applicable environmental mandates without the State's compliance assistance. Such
communities, generally comprised of fewer than 2,500 residents3, should be:
• non-profit
• governing entities (incorporated or unincorporated)
• that own facilities that supply municipal services.
EPA's evaluation of the appropriateness of a State's small community environmental
compliance assistance program will depend in part on whether the State uses measures of
administrative, technical, and financial capacity to limit provision of the benefits of this policy to
those communities that truly need assistance. Such capacity measures could include, among
other things, number of staff and their responsibilities, degree of isolation from other nearby
communities, evaluation of existing infrastructure, average household income, the last decade's
median housing values, employment opportunities, population projections, population age
representation, revenue sources, revenue generating capacity, the level of government that
operates the utility systems, current bond debt, and an assessment of the impact of other Federal
mandates competing with environmental mandates for the community's resources.
3 EPA selected a population figure of 2,500 to be consistent with 42 U.S.C. 6908, which
established the Small Town Environmental Planning Program, and which defined the term small
town to mean "an incorporated or unincorporated community...with a population of less than
2,500."
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WSG91
Not less than quarterly, a State should provide EPA with a list of communities
participating in its small community environmental compliance assistance program to ensure
proper State and Federal coordination on enforcement activity.
Assessing good faith and compliance status
In considering whether a State has established and is following an adequate process for
assessing a small community's good faith, EPA generally will look at such factors as the
participating communities' candor in contacts with State regulators and the communities' efforts
to comply with applicable environmental requirements. Measures of a small community's efforts
to comply include:
• attempts to comply or a request for compliance assistance prior to the initiation of an
enforcement response;
• prompt correction of known violations;
• willingness to remediate harm to public health, welfare, or the environment;
• readiness to enter into a written and enforceable compliance agreement and schedule; and
• adherence to the schedule.
A State's assessment of a small community's compliance status should identify:
• every environmental requirement to which the community's municipal operations are
subject;
• the community's current and anticipated future violations of those requirements;
• the comparative risk to public health, welfare, or the environment of each current and
anticipated future violation; and
• the community's compliance options., ri-:
In addition, EPA recommends that the process developed by the State include
consideration of regionalization and restructuring as compliance alternatives, and consideration
of the impact of promulgated regulations scheduled to become effective in the future.
Priorities for addressing violations
States seeking EPA's deference should require small communities to correct any
identified violations of environmental regulations as soon as possible, taking into consideration
the community's administrative, technical, and financial capacities, and the State's ability to
assist in strengthening those capacities. A small community should address all of its violations
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WSG91
in order of risk-based priority4. Any identified violation or circumstance that may present an
imminent and substantial endangerment to, has caused or is causing actual serious harm to, or
presents a serious threat to, public health, welfare, or the environment is to be addressed
immediately in a manner that abates the endangerment or harm and reduces the threat. Activities
necessary to abate the endangerment or harm and reduce the threat posed by such violations or
circumstances are not to be delayed while the State and small community establish and
implement the process for assigning priorities for correcting other violations.
Ensuring prompt correction of violations
If the small community cannot correct all of its violations within 180 days of the State's
commencement of compliance assistance to the community, the State and the community should,
within 180 days of the State's commencement of compliance assistance to the community, enter
into and begin implementing a written and enforceable compliance agreement and schedule5 that:
• establish a specified period for correcting all outstanding violations in order of risk-based
priority6;
• incorporate interim milestones that demonstrate reasonable progress toward compliance;
• contain provisions to ensure continued compliance with all environmental requirements
with which the community is in compliance at the time the agreement is entered; and
• incorporate provisions, where they would be applicable to the small community, to
ensure future compliance with any additional already promulgated environmental
requirements that will become effective after the agreement is signed.
Consultation with EPA during the drafting of a compliance agreement and schedule and
the forwarding of final compliance agreements and schedules to EPA are recommended to ensure
appropriate coordination between the State and EPA.
4 EPA does not intend that establishment of risk-based priorities be viewed as mandating
delay in addressing low priority violations that can be easily and quickly corrected without
affecting progress toward addressing higher priority violations requiring long term compliance
efforts.
5 Neither a State nor a community may unilaterally alter or supersede a community's
obligations under existing Federal administrative orders or Federal judicial consent decrees.
6 States may allow weighing of unique local concerns and characteristics, but the process
should be sufficiently standardized and objective that an impartial third person using the same
process and the same facts would not reach significantly different results. Public notification and
public participation are an important part of the priority setting process.
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WSG 91
Limits on EPA Deference
EPA reserves all of its enforcement authorities. EPA will generally defer to a State's
exercise of its enforcement discretion in accordance with this policy, except that EPA reserves its
enforcement discretion with respect to any violation or circumstance that may present an
imminent and substantial endangerment to, has caused or is causing actual serious harm to, or
presents a serious threat to, public health, welfare, or the environment7.
The Policy on Flexible State Enforcement Responses to Small Community Violations
does not apply if, in EPA's judgement:
• a State's small community environmental compliance assistance program process fails to
satisfy the adequacy criteria stated above; or
• a State's application of its small community environmental compliance assistance
program process fails in a specific case adequately to protect public health and the
environment because it neither requires nor results in reasonable progress toward, and
achievement of, environmental compliance by a date certain.
Where EPA determines that this policy does not apply, and where EPA has reserved its
enforcement discretion, other existing EPA enforcement policies remain applicable. The State's
and EPA's options in these circumstances include discretion to take or not take formal
enforcement action in light of factual, equitable, or community capacity considerations with
respect to violations that had been identified during compliance assistance and were not
corrected. Neither the State's actions in providing, nor in failing to provide, compliance
assistance shall constitute a legal defense in any enforcement action. However, a community's
good faith efforts to correct violations during compliance assistance may be considered a
mitigating factor in determining the appropriate enforcement response or penalty in subsequent
enforcement actions.
Nothing in this policy is intended to release a State from any obligations to supply
EPA with required routinely collected and reported information. As described above, States
should provide EPA with lists of participating small communities and copies of final
compliance agreements and schedules. States should also give EPA immediate notice upon
discovery of a violation or circumstance that may present an imminent and substantial
endangerment to, has caused or is causing actual serious harm to, or presents serious threats
to, public health, welfare, or the environment.
7 EPA will regard any unaddressed violation or circumstance that may present an
imminent and substantial endangerment to, has caused or is causing actual serious harm to, or
presents a serious threat to, public health, welfare, or the environment in a small community
participating in a State environmental compliance assistance program as a matter of national
significance which requires consultation with or the concurrence of, as appropriate, the Assistant
Administrator for Enforcement and Compliance Assurance or his or her delegatee before
initiation of an EPA enforcement response.
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WSG91
This policy has no effect on the existing authority of citizens to initiate a legal action
against a community alleging environmental violations.
This policy sets forth factors for consideration that will guide the Agency in its exercise
of enforcement discretion. It states the Agency's views as to how the Agency intends to allocate
and structure enforcement resources. The policy is not final agency action, and is intended as
guidance. This policy is not intended for use in pleading, or at hearing or trial. It does not create
any rights, duties, obligations, or defenses, implied or otherwise, hi any third parties.
Policy Assessment
Measuring the success of compliance assistance programs is a critical component of
EPA's ability to assess the results of compliance and enforcement activities. EPA will work with
States to evaluate the effectiveness of the Policy on Flexible State Enforcement Responses to
Small Community Violations. Within three years following its issuance, EPA will consider
whether the policy should be continued, modified, or discontinued.
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WSG 92 is outdated and has been deleted.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 93
Date Signed: December 22,1995
Federal Register/ Vol. 60, No. 246/Friday, December 22,1995/Notices pp: 66705-66712
Part III: Environmental Protection Agency, Incentives for Self-Policing: Discovery, Disclosure,
Correction and Prevention of Violations; Notice.
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-5400-1]
Incentives for Self-Policing: Discovery,
Disclosure, Correction and Prevention of
Violations
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final Policy Statement
SUMMARY: The Environmental Protection
Agency (EPA) today issues its final policy to
enhance protection of human health and the
environment by encouraging regulated
entities to voluntarily discover, and disclose
and correct violations of environmental
requirements. Incentives include eliminating
or substantially reducing the gravity
component of civil penalties and not
recommending cases for criminal
prosecution where specified conditions are
met, to those who voluntarily self- disclose
and promptly correct violations. The policy
also restates EPA's long-standing practice of
not requesting voluntary audit reports to
trigger enforcement investigations. This
policy was developed in close consultation
with the U.S. Department of Justice, states,
public interest groups and the regulated
community, and will be applied uniformly by
the Agency's enforcement programs.
DATES: This policy is effective January 22,
1996.
FOR FURTHER INFORMATION
CONTACT: Additional documentation
relating to the development of this policy is
contained in the environmental auditing
public docket. Documents from the docket
may be obtained by calling (202) 260-7548,
requesting an index to docket #C-94-01, and
faxing document requests to (202) 260-4400.
Hours of operation are 8 am. to 5:30 p.m.,
Monday through Friday, except legal
holidays. Additional contacts are Robert
Fentress or Brian Riedel, at (202) 564- 4187.
SUPPLEMENTARY INFORMATION:
I. Explanation of Policy
. A. Introduction
The Environmental Protection Agency
today issues its final policy to enhance
protection of human health and the
environment by encouraging regulated
entities to discover voluntarily, disclose,
correct and prevent violations of federal
environmental law. Effective 30 days from
today, where violations are found through
voluntary environmental audits or efforts that
reflect a regulated entity's due diligence, and
are promptly disclosed and expeditiously
corrected, EPA will not seek gravity-based
(i.e., non-economic benefit) penalties and
will generally not recommend criminal
prosecution against the regulated entity. EPA
will reduce gravity-based penalties by 75%
for violations that are voluntarily discovered,
and are promptly disclosed and corrected,
even if not found through a formal audit or
due diligence. Finally, the policy restates
EPA's long-held policy and practice to
refrain from routine requests for
environmental audit reports. The policy
includes important safeguards to deter
irresponsible behavior and protect the public
and environment. For example, in addition to
prompt disclosure and expeditious
correction, the policy requires companies to
act to prevent recurrence of the violation and
to remedy any environmental harm which
may have occurred. Repeated violations or
those which result in actual harm or may
present imminent and substantial
endangerment are not eligible for relief under
this policy, and companies will not be
allowed to gain an economic advantage over
their competitors by delaying their
investment in compliance. Corporations
remain criminally liable for violations that
result from conscious disregard of their
obligations under the law, and individuals
are liable for criminal misconduct
The issuance of this policy concludes
EPA's eighteen-month public evaluation of
the optimum way to encourage voluntary
self-policing while preserving fair and
effective enforcement. The incentives,
conditions and exceptions announced today
reflect thoughtful suggestions from the ..
Department of Justice, state attorneys general
and local prosecutors, state environmental
agencies, the regulated community, and
public interest organizations. EPA believes
that it has found a balanced and responsible
approach, and will conduct a study within
three years to determine the effectiveness of
this policy.
B. Public Process
One of the Environmental Protection
Agency's most important responsibilities is
ensuring compliance with federal laws that
protect public health and safeguard the
environment. Effective deterrence requires
inspecting, bringing penalty actions and
securing compliance and remediation of
harm. But EPA realizes that achieving
compliance also requires the cooperation of
thousands of businesses and other regulated
entities subject to these requirements.
Accordingly, in May of 1994, the
Administrator asked the Office of
Enforcement and Compliance Assurance
(OECA) to determine whether additional
incentives were needed to encourage
voluntary disclosure and correction of
violations uncovered during environmental
audits.
EPA began its evaluation with a two-day
public meeting in July of 1994, in
Washington, D.C., followed by a two-day
meeting in San Francisco on January 19,
1995 with stakeholders from industry, trade
groups, state environmental commissioners
and attorneys general, district attorneys,
public interest organizations and professional
environmental auditors. The Agency also
established and maintained a public docket
of testimony presented at these meetings and
all comment and correspondence submitted
to EPA by outside parties on this issue. In
addition to considering opinion and
information from stakeholders, the Agency
examined other federal and state policies
related to self-policing, self-disclosure and
correction. The Agency also considered
relevant surveys on auditing practices in the
private sector. EPA completed the first stage
of this effort with the announcement of an
interim policy on April 3 of this year, which
defined conditions under which EPA would
reduce civil penalties and not recommend
criminal prosecution for companies that
audited, disclosed, and corrected violations.
• interested parties were asked to submit
comment on the interim policy by June 30 of
this year (60 FR 16875), and EPA received
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WSG93
over 300 responses from a wide variety of
private and public organizations. (Comments
on the interim audit policy are contained in
the Auditing Policy Docket, hereinafter,
'"Docket"'.) Further, the American Bar
Association SONREEL Subcommittee
hosted five days of dialogue with
representatives from the regulated industry,
states and public interest organizations in
June and September of this year, which
identified options for strengthening the
interim policy. The changes to the interim
policy announced today reflect insight
gained through comments submitted to EPA,
the ABA dialogue, and the Agency's
practical experience implementing the
interim policy.
C. Purpose
• This policy is designed to encourage
greater compliance with laws and regulations
that protect human health and the
environment. It promotes a higher standard
of self-policing by waiving gravity-based
penalties for violations that are promptly
disclosed and corrected, and which were
discovered through voluntary audits or
compliance management systems that
demonstrate due diligence. To further
promote compliance, the policy reduces
gravity-based penalties by 75% for any
violation voluntarily discovered and
promptly disclosed and corrected, even if not
found through an audit or compliance
management system. EPA's enforcement
program provides a strong incentive for
responsible behavior by imposing stiff
sanctions for noncompliance. Enforcement
has contributed to the dramatic expansion of
environmental auditing measured in
numerous recent surveys. For example, more
than 90% of the corporate respondents to a
1995 Price-Waterhouse survey who conduct
audits said that one of the reasons they did so
was to find and correct violations before they
were found by government inspectors. (A
copy of the Price-Waterhouse survey is
contained in the Docket as document
VIII-A-76.)
At the same time, because government
resources are limited, maximum compliance
cannot be achieved without active efforts by
the regulated community to police
themselves. More than half of the
respondents to the same 1995
Price-Waterhouse survey said that they
would expand environmental auditing in
exchange for reduced penalties for violations
discovered and corrected. While many
companies already audit or have compliance
management programs, EPA believes that
the incentives offered in this policy will •
improve the frequency and quality of these
self-monitoring efforts.
D. Incentives for Self-Policing
Section C of EPA's policy identifies the
major incentives that EPA will provide to
encourage self-policing, self-disclosure, and
prompt self-correction. These include not
seeking gravity-based civil penalties or
reducing them by 75%, declining to
recommend criminal prosecution for
regulated entities that self-police, and
refraining from routine requests for audits.
(As noted in Section C of the policy, EPA
"has refrained from making routine requests
for audit reports since issuance of its 1986
policy on environmental auditing.)
1. Eliminating Gravity-Based Penalties
Under Section C(l) of the policy, EPA
will not seek gravity-based penalties for
violations found through auditing that are
promptly disclosed and corrected.
Gravity-based penalties will also be waived
for violations found through any documented
procedure for self- policing, where the
company can show that it has a compliance
management program that meets the criteria
for due diligence in Section B of the policy.
Gravity-based penalties (defined in
Section B of the policy) generally reflect the
seriousness of the violator's behavior. EPA
has elected to waive such penalties for
violations discovered through due diligence
or environmental audits, recognizing that
these voluntary efforts play a critical role in
protecting human health and the
environment by identifying, correcting and
ultimately preventing violations. All of the
conditions set forth in Section D, which
include prompt disclosure and expeditious
correction, must be satisfied for
gravity-based penalties to be waived.
As in the interim policy, EPA reserves the
right to collect any economic benefit that
may have been realized as a result of
noncompliance, even where companies meet
all other conditions of the policy. Economic
benefit may be waived, however, where the
Agency determines that it is insignificant
After considering public comment, EPA
has decided to retain the discretion to recover
economic benefit for two reasons. First, it
provides an incentive to comply on time.
Taxpayers expect to pay interest or a penalty
fee if their tax payments are late; the same
principle should apply to corporations that
have delayed their investment in compliance.
Second, it is fair because it protects
responsible companies from being undercut
by their noncomplying competitors, thereby
preserving a level playing field. The concept
of recovering economic benefit was
supported in public comments by many
stakeholders, including industry
representatives (see, e.g., Docket, II-F-39,
II-F-28,andII-F-l8).
2.75% Reduction of Gravity
The policy appropriately limits the
complete waiver of gravity- based civil
penalties to companies that meet the higher
standard of environmental auditing or
systematic compliance management
However, to provide additional
encouragement for the kind of self-policing
that benefits the public, gravity-based
penalties will be reduced by 75% for a
violation that is voluntarily discovered,
promptly disclosed and expedittously
corrected, even if it was not found through
an environmental audit and the company
cannot document due diligence. EPA expects
that this will encourage companies to come
forward and work with the Agency to resolve
environmental problems and begin to
develop an effective compliance
management program.
Gravity-based penalties will be reduced
75% only where the company meets all
conditions in Sections D(2) 'through D(9).
EPA has eliminated language from the
interim policy indicating that penalties may
be reduced "up to" 75% where "most"
conditions are met, because the Agency
believes that all of the conditions in D(2)
through D(9) are reasonable and essential to
achieving compliance. This change also
responds to requests for greater clarity and
predictability.
3. No Recommendations for Criminal
Prosecution
EPA has never recommended criminal
prosecution of a regulated entity based on
voluntary disclosure of violations discovered
through audits and disclosed to the
government before an investigation was
already under way. Thus, EPA will not
recommend criminal prosecution for a
regulated entity that uncovers violations
through environmental audits or due
diligence, promptly discloses and
expeditiously corrects those violations, and
meets all other conditions of Section D of the
policy.
This policy is limited to good actors, and
therefore has important limitations. It will
not apply, for example, where corporate
officials are consciously involved in or
willfully blind to violations, or conceal or
condone noncompliance. Since the regulated
entity must satisfy all of the conditions of
Section D of the policy, violations that
caused serious harm or which may pose
imminent and substantial endangerment to
human health or the environment are not
covered by this policy. Finally, EPA reserves
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the right to recommend prosecution for the
criminal conduct of any culpable individual.
Even where all of the conditions of this
policy are not met, however, it is important
to remember that EPA may decline to
recommend prosecution of a company or
individual for many other reasons under
other Agency enforcement policies. For
example, the Agency may decline to
recommend prosecution where there is no
significant harm or culpability and the
individual or corporate defendant has
cooperated fully.
Where a company has met the conditions
for avoiding a recommendation for criminal
prosecution under this policy, it will not face
any civil liability for gravity-based penalties.
That is because the same conditions for
discovery, disclosure, and correction apply in
both cases. This represents a clarification of
the interim policy, not a substantive change.
4. No Routine Requests for Audits
EPA is reaffirming its policy, in effect
since 1986, to refrain from routine requests
for audits. Eighteen months of public
testimony and debate have produced no
evidence that the Agency has deviated, or
should deviate, from this policy.
If the Agency has independent evidence of
a violation, it may seek information needed
to establish the extent and nature of the
problem and the degree of culpability. In
general, however, an audit which results in
prompt correction clearly will reduce
liability, not expand it Furthermore, a
review of the criminal docket did not reveal a
single criminal prosecution for violations
discovered as a result of an audit
self-disclosed to the government.
Ł Conditions
Section D describes the nine conditions
that a regulated entity must meet in order for
the Agency not to seek (or to reduce) gravity-
based penalties under the policy. As
explained in the Summary above, regulated
entities that meet all nine conditions wilt not
face gravity- based civil penalties, and will
generally not have to fear criminal
prosecution. Where the regulated entity
meets all of the conditions except the first
(D(l)), EPA will reduce gravity-based
penalties by 75%.
1. Discovery of the Violation Through an
Environmental Audit or Due Diligence
Under Section D(l), the violation must
have been discovered through either (a) an
environmental audit that is systematic,
objective, and periodic as defined in'the
1986 audit policy, or (b) a documented,
systematic procedure or practice which
reflects the regulated entity's due diligence in
preventing, detecting, and correcting
violations. The interim policy provided full
credit for any violation found through
"voluntary self-evaluation," even if the
evaluation did not constitute an audit In
order to receive full credit under the final
policy, any self-evaluation that is not an
audit must be part of a "due diligence"
'program. Both "environmental audit" and
"due diligence" are defined in Section B of
the policy.
Where the violation is discovered through
a "systematic procedure or practice" which
is not an audit, the regulated entity will be
asked to document how its program reflects
the criteria for due diligence as defined in
Section B of the policy. These criteria, which
are adapted from existing codes of practice
such as the 1991 Criminal Sentencing
Guidelines, were fully discussed during the
ABA dialogue. The criteria are flexible
enough to accommodate different types and
sizes of businesses. The Agency recognizes
that a variety of compliance management
programs may develop under the due
diligence criteria, and will use its review
under this policy to determine whether basic
criteria have been met
Compliance management programs which
train and motivate production staff to prevent,
detect and correct violations on a daily basis
are a valuable complement to periodic
auditing. The policy is responsive to
recommendations received during public
comment and from the ABA dialogue to give
compliance management efforts which meet
the criteria for due diligence the same penalty
reduction offered for environmental audits.
(See, e.g., II-F-39, II-E-18, and II-G-18 in the
Docket.) EPA may require as a condition of
penalty mitigation that a description of the
regulated entity's due diligence efforts be
made publicly available. The Agency added
this provision in response to suggestions from
environmental groups, and believes that the
availability of such information will allow the
public to judge the adequacy of compliance
management systems, lead to enhanced
compliance, and foster greater public trust in
the integrity of compliance management
systems.
2. Voluntary Discovery and Prompt
Disclosure
Under Section D(2) of the final policy, the
violation must have been identified
voluntarily, and not through a monitoring,
sampling, or auditing procedure that is
required by statute, regulation, permit,
judicial or administrative order, or consent
agreement. Section D(4) requires that
disclosure of the violation be prompt and in
writing. To avoid confusion and respond to
state requests for greater clarity, disclosures
under this policy should be made to EPA.
The Agency will work closely with states in
implementing the policy.
The requirement that discovery of the
violation be voluntary is consistent with
proposed federal and state bills which would
reward those discoveries that the regulated
entity can legitimately attribute to its own
voluntary efforts.
The policy gives three specific examples
of discovery that would not be voluntary, and
therefore would not be eligible for penalty
mitigation: emissions violations detected
through a required continuous emissions
monitor, violations of NPDES discharge
limits found through prescribed monitoring,
and violations discovered through a
compliance audit required to be performed
by the terms of a consent order or settlement
agreement.
The final policy generally applies to any
violation that is voluntarily discovered,
regardless of whether the violation is
required to be reported. This definition
responds to comments pointing out that
reporting requirements are extensive, and
that excluding them from the policy's scope
would severely limit the incentive for
self-policing (see, e.g., II-C-48 in the
Docket).
The Agency wishes to emphasize that the
integrity of federal environmental law
depends upon timely and accurate reporting.
The public relies on timely and accurate
reports from the regulated community, not
only to measure compliance but to evaluate
health or environmental risk and gauge
progress in reducing pollutant loadings. EPA
expects the policy to encourage the kind of
vigorous self-policing that will serve these
objectives, and not to provide an excuse for
delayed reporting. Where violations of
reporting requirements are voluntarily
discovered, they must be promptly reported
(as discussed below). Where a failure to
report results in imminent and substantial
endangerment or serious harm, that violation
is not covered under this policy (see
Condition D(8)). The policy also requires the
regulated entity to prevent recurrence of the
violation, to ensure that noncompliance with
reporting requirements is not repeated. EPA
will closely scrutinize the effect of the policy
in furthering the public interest in timely and
accurate reports from the regulated
community. Under Section D(4),
disclosure of the violation should be made
within 10 days of its discovery, and in
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writing to EPA. Where a statute or regulation
requires reporting be made in less than 10
days, disclosure should be made within the
time limit established by law. Where
reporting within ten days is not practical
because the violation is complex and
compliance cannot be determined within that
period, the Agency may accept later
disclosures if the circumstances do not
present a serious threat and the regulated
entity meets its burden of showing that the
additional time was needed to determine
compliance status. This condition
recognizes that it is critical for EPA to get
timely reporting of violations in order that it
might have clear notice of the violations and
the opportunity to respond if necessary, as
well as an accurate picture of a given
facility's compliance record. Prompt
. disclosure is also evidence of the regulated
entity's good faith in wanting to achieve or
return to compliance as soon as possible.
In the final policy, the Agency has added
the words, "or may have occurred," to the
sentence, "The regulated entity fully
discloses that a specific violation has
occurred, or may have occurred * * *." This
change, which was made in response to
comments received, clarifies that where an
entity has some doubt about the existence of
a violation, the recommended course is for it
to disclose and allow the regulatory
authorities to make a definitive
determination.
In general, the Freedom of Information
Act will govern the Agency's release of
disclosures made pursuant to this policy.
EPA will, independently of FOIA, make
publicly available any compliance
agreements reached under the policy (see
Section M of the policy), as well as
descriptions of due diligence programs
submitted under Section D.I of the Policy.
Any material claimed to be Confidential
Business Information will be treated in
accordance with EPA regulations at 40
C.F.R.Part2.
3. Discovery and Disclosure Independent of
Government or Third Party Plaintiff
Under Section D(3), in order to be
"voluntary", the violation must be identified
and disclosed by the regulated entity prior to:
the commencement of a federal state or local
agency inspection, investigation, or
information request; notice of a citizen suit;
legal complaint by a third party; the
reporting of the violation to EPA by a
"whistleblower" employee; and imminent
discovery of the violation by a regulatory
agency.
This condition means that regulated
entities must have taken the initiative to find
violations and promptly report them, rather
than reacting to knowledge of a pending
enforcement action or third-party complaint
This concept was reflected in the interim
policy and in federal and state penalty
immunity laws and did not prove
controversial in the public comment process.
4. Correction and Remediation
Section D(5) ensures that, in order to
receive the penalty mitigation benefits
available under the policy, the regulated entity
'not only voluntarily discovers and promptly
discloses a violation, but expeditiously
corrects it, remedies any harm caused by that
violation (including responding to any spill
and carrying out any removal or remedial
action required by law), and expeditiously
certifies in writing to appropriate state, local
and EPA authorities that violations have been
corrected. It also enables EPA to ensure that
the regulated entity will be publicly
accountable for its commitments through
binding written agreements, orders or consent
decrees where necessary. The final policy
requires the violation to be corrected within
60 days, or that the regulated entity provide
written notice where violations may take
longer to correct EPA recognizes that some
violations can and should be corrected
immediately, while others (e.g., where capital
expenditures are involved), may take longer
than 60 days to correct In all cases, the
regulated entity will be expected to do its
utmost to achieve or return to compliance as
expeditiously as possible.
Where correction of the violation depends
upon issuance of a permit which has been
applied for but not issued by federal or state
authorities, the Agency will, where
appropriate, make reasonable efforts to secure
timely review of the permit.
5. Prevent Recurrence
Under Section D(6), the regulated entity
must agree to take steps to prevent a
recurrence of the violation, including but not
limited to improvements to its environmental
auditing or due diligence efforts. The final
policy makes clear that the preventive steps
may include improvements to a regulated
entity's environmental auditing or due
diligence efforts to prevent recurrence of the
violation.
In the interim policy, the Agency required
that the entity implement appropriate
measures to prevent a recurrence of the
violation, a requirement that operates
prospectively. However, a separate condition
in the interim policy also required that the
violation not indicate "a failure to take
appropriate steps to avoid repeat or recurring
violations"-a requirement that operates
retrospectively. In the interest of both clarity
and fairness, the Agency has decided for
purposes of this condition to keep the focus
prospective and thus to require only that
steps be taken to prevent recurrence of the
violation after it has been disclosed.
6. No Repeat Violations
In response to requests from commenters
(see, e.g., II-F-39 and II- G-18 in the
Docket), EPA has established "bright lines"
to determine when previous violations will
bar a regulated entity from obtaining relief
under this policy. These will help protect the
public and responsible companies by
ensuring that penalties are not waived for
repeat offenders. Under condition D(7), the
same or closely-related violation must not
have occurred previously within the past
three years at the same facility, or be part of
a pattern of violations on the regulated
entity's part over the past five years. This
provides companies with a continuing
incentive to prevent violations, without being
unfair to regulated entities responsible for
managing hundreds of facilities. It would be
unreasonable to provide unlimited amnesty
for repeated violations of the same
requirement.
The term "violation" includes any
violation subject to a federal or state civil
judicial or administrative order, consent
agreement, conviction or plea agreement
Recognizing that minor violations are
sometimes settled without a formal action in
court, the term also covers any act or
omission for which the regulated entity has
received a penalty reduction in the past.
Together, these conditions identify situations
in which the regulated community has had
clear notice of its noncompliance and an
opportunity to correct.
7. Other Violations Excluded
Section D(8) makes clear that penalty
reductions are not available under this policy
for violations that resulted in serious actual
harm or which may have presented an
imminent and substantial endangerment to
public health or the environment Such
events indicate a serious failure (or absence)
of a self-policing program, which should be
designed to prevent such risks, and it would
seriously undermine deterrence to waive
penalties for such violations. These
exceptions are responsive to suggestions
from public interest organizations, as well as
other commenters. (See, e.g., II-F-39 and
II-G-18 in the Docket) The final policy
also excludes penalty reductions for
violations of the specific terms of any order,
consent agreement, or plea agreement (See,
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II-E-60 in the Docket.) Once a consent
agreement has been negotiated, there is little
incentive to comply if there are no sanctions
for violating its specific requirements. The
exclusion in this section applies to violations
of the terms of any response, removal or
remedial action covered by a written
agreement
8. Cooperation
Under Section D(9), the regulated entity
must cooperate as required by EPA and
provide information necessary to determine
the applicability of the policy. This condition
is largely unchanged from the interim policy.
In the final policy, however, the Agency has
added that "cooperation" includes assistance
in determining the facts of any related
violations suggested by the disclosure, as
well as of the disclosed violation itself: This
was added to allow the agency to obtain
information about any violations indicated
by the disclosure, even where the violation is
not initially identified by the regulated entity.
f. Opposition to Privilege
The Agency remains firmly opposed to the
establishment of a statutory evidentiary
privilege for environmental audits for the
following reasons:
1. Privilege, by definition, invites secrecy,
instead of the openness needed to build
public trust in industry's ability to self-
police. American law reflects the high value
that the public places on fair access to the
facts. The Supreme Court, for example, has
said of privileges that, "[w]hatever their
origins, these exceptions to the demand for
every man's evidence are not lightly created
nor expansively construed, for they are in
derogation of the search for truth." United
States v. Nixon, 418 U.S. 683 (1974).
Federal courts have unanimously refused to
recognize a privilege for environmental
audits in the context of government
investigations. See, e.g., United States v.
Dexter. 132 F.R.D. 8,9-10 (D.Conn. 1990)
(application of a privilege "would
effectively impede [EPA's] ability to enforce
the Clean Water Act, and would be contrary
to stated public policy.")
2. Eighteen months have failed to produce
any evidence that a privilege is needed.
Public testimony on the interim policy
confirmed that EPA rarely uses audit reports
as evidence. Furthermore, surveys
demonstrate that environmental auditing has
expanded rapidly over the past decade
without the stimulus of a privilege. Most
recently, the 1995 Price Waterhouse survey
found that those few large or mid-sized
companies that do not audit generally do not
perceive any need to; concern about
.. . .. .
confidentiality ranked as one of the least
important factors in their decisions.
3. A privilege would invite defendants to
claim as "audit" material almost any evidence
the government needed to establish a violation
or determine who was responsible. For
example, most audit privilege bills under
consideration in federal and state legislatures
would arguably protect factual
information-such as health studies or '
contaminated sediment data-and not just the
conclusions of the auditors. While the
'government might have access to required
monitoring data under the law, as some
industry commenters have suggested, a
privilege of that nature would cloak
underlying facts needed to determine whether
such data were accurate.
4. An audit privilege would breed litigation,
as both parties struggled to determine what
material fell within its scope. The problem is
compounded by the lack of any clear national
standard for audits. The "in camera" (i.e.,
non-public) proceedings used to resolve these
disputes under some statutory schemes would
result in a series of time- consuming,
expensive mini-trials.
5. The Agency's policy eliminates the need
for any privilege as against the government,
by reducing civil penalties and criminal
liability for those companies that audit,
disclose and correct violations. The 199$
Price Waterhouse survey indicated that
companies would expand their auditing
programs in exchange for the kind of
incentives that EPA provides in its policy.
6. Finally, audit privileges are strongly
opposed by the law enforcement community,
including the National District Attorneys
Association, as well as by public interest
groups. (See, e.g., Docket, II-C-21, II-C-28,
II-C-52, IV-G-10. II-C-25, II-C-33, II-C-52,
Il-C-48, and II-G-13 through H-G-24.)
G. Effect on States
The final policy reflects EPA's desire to
develop fair and effective incentives for
self-policing that will have practical value to
states that share responsibility for enforcing
federal environmental laws. To that end, the
Agency has consulted closely with state
officials in developing this policy, through a
series of special meetings and conference calls
in addition to the extensive opportunity for
public comment. As a result, EPA believes its
final policy is grounded in common-sense
principles that should prove useful in the
development of state programs and policies.
As always, states are encouraged to
experiment with different approaches that do
not jeopardize the fundamental national
interest in assuring that violations of federal
law do not threaten the public health or the
environment, or make it profitable not to
comply. The Agency remains opposed to
state legislation that does not include these
basic protections, and reserves its right to
bring independent action against regulated
entities for violations of federal law that
threaten human health or the environment,
reflect criminal conduct or repeated
noncompliance, or allow one company to
make a substantial profit at the expense of its
law-abiding competitors. Where a state has
obtained appropriate sanctions needed to
deter such misconduct, there is no need for
EPA action.
H. Scope of Policy
EPA has developed this document as a
policy to guide settlement actions. EPA
employees will be expected to follow this
policy, and the Agency will take steps to
assure national consistency in application.
For example, the Agency will make public
any compliance agreements reached under
this policy, in order to provide the regulated
community with fair notice of decisions and
greater accountability to affected
communities. Many in the regulated
community recommended that the Agency
convert the policy into a regulation because
they felt it might ensure greater consistency
and predictability. While EPA is taking steps
to ensure consistency and predictability and
believes that it will be successful, the
Agency will consider this issue and will
provide notice if it determines that a
rulemaking is appropriate.
II. Statement of Policy: Incentives for
Self-Policing
Discovery, Disclosure. Correction and
Prevention
A. Purpose
This policy is designed to enhance
protection of human health and the
environment by encouraging regulated
entities to voluntarily discover, disclose,
correct and prevent violations of federal
environmental requirements.
B. Definitions
. For purposes of this policy, the following
definitions apply: "Environmental Audit"
has the definition given to it in EPA's 1986
audit policy on environmental auditing, i.e.,
"a systematic, documented, periodic and
objective review by regulated entities of
facility operations and practices related to
meeting environmental requirements."
"Due Diligence" encompasses the
regulated entity's systematic efforts,
appropriate to the size and nature of its
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business, to prevent, detect and correct
violations through all of the following:
(a) Compliance policies, standards and
procedures that identify how employees and
agents are to meet the requirements of laws,
regulations, permits and other sources of
authority for environmental requirements;
(b) Assignment of overall responsibility
for overseeing compliance with policies,
standards, and procedures, and assignment
of specific responsibility for assuring
compliance at each facility or operation;
(c) Mechanisms for systematically
assuring that compliance policies, standards
and procedures are being carried out,
including monitoring and auditing systems
reasonably designed to detect and correct
violations, periodic evaluation of the overall
performance of the compliance management
system, and a means for employees or agents
to report violations of environmental
requirements without fear of retaliation;
(d) Efforts to communicate effectively the
regulated entity's standards and procedures
to all employees and other agents;
(e) Appropriate incentives to managers
and employees to perform in accordance
with the compliance policies, standards and
procedures, including consistent enforcement
through appropriate disciplinary
mechanisms; and
(f) Procedures for the prompt and
appropriate correction of any violations, and
any necessary modifications to the regulated
entity's program to prevent future violations.
"Environmental audit report" means the
analysis, conclusions, and recommendations
resulting from an environmental audit, but
does not include data obtained in, or
testimonial evidence concerning, the
environmental audit.
"Gravity-based penalties" are that portion
of a penalty over and above the economic
benefit, i.e., the punitive portion of the
penalty, rather than that portion representing
a defendant's economic gain from
non-compliance. (For further discussion of
this concept, see "A Framework for
Statute-Specific Approaches to Penalty
Assessments", #GM-22, 1980, U.S. EPA -
General Enforcement Policy Compendium).
"Regulated entity" means any entity,
including a federal, state or municipal
agency or facility, regulated under federal
environmental laws.
C. Incentives for Self-Policing
1. No Gravity-Based Penalties
Where the regulated entity establishes that
it satisfies all of the conditions of Section D
of the policy, EPA will not seek
gravity-based penalties for violations of
federal environmental requirements.
2. Reduction of Gravity-Based Penalties by
75%
EPA will reduce gravity-based penalties for
violations of federal environmental
requirements by 75% so long as the regulated
entity satisfies all of the conditions of Section
D(2) through D(9) below.
3. No Criminal Recommendations
(a) EPA will not recommend to the
'Department of Justice or other prosecuting
authority that criminal charges be brought
against a regulated entity where EPA
determines that all of the conditions in
Section D are satisfied, so long as the
violation does not demonstrate or involve:
(i) a prevalent management philosophy or
practice that concealed or condoned
environmental violations; or
(ii) high-level corporate officials' or
managers' conscious involvement in, or
willful blindness to, the violations.
(b) Whether or not EPA refers the regulated
entity for criminal prosecution under this
section, the Agency reserves the right to
recommend prosecution for the criminal acts
of individual managers or employees under
existing policies guiding the exercise of
enforcement discretion.
4. No Routine Request for Audits
EPA will not request or use an
environmental audit report to initiate a civil or
criminal investigation of the entity. For
example, EPA will not request an
environmental audit report in routine
inspections. If the Agency has independent
reason to believe that a violation has occurred,
however, EPA may seek any information
relevant to identifying violations or
determining liability or extent of harm.
D. Conditions
1. Systematic Discovery
The violation was discovered through:
(a) an environmental audit; or
(b) an objective, documented, systematic
procedure or practice reflecting the regulated
entity's due diligence in preventing, detecting,
and correcting violations. The regulated entity
must provide accurate and complete
documentation to the Agency as to how it
exercises due diligence to prevent, detect and
correct violations according to the criteria for
due diligence outlined in Section B. EPA may
require as a condition of penalty mitigation
that a description of the regulated entity's due
diligence efforts be made publicly available.
2. Voluntary Discovery
The violation was identified voluntarily,
and not through a legally mandated
monitoring or sampling requirement
prescribed by statute, regulation, permit,
judicial or administrative order, or consent
agreement For example, the policy does not
apply to:
(a) emissions violations detected through a
continuous emissions monitor (or alternative
monitor established in a permit) where any
such monitoring is required;
(b) violations of National Pollutant
Discharge Elimination System (NPDES)
discharge limits detected through required
sampling or monitoring;
(«) violations discovered through a
compliance audit required to be performed
by the terms of a consent order or settlement
agreement.
3. Prompt Disclosure
The regulated entity fully discloses a
specific violation within 10 days (or such
shorter period provided by law) after it has
discovered that the violation has occurred, or
may have occurred, in writing to EPA;
4. Discovery and Disclosure Independent of
Government or Third Party Plaintiff
The violation must also be identified and
disclosed by the regulated entity prior to:
(a) the commencement of a federal, state
or local agency inspection or investigation,
or the issuance by such agency of an
information request to the regulated entity;
(b) notice of a citizen suit;
(c) the filing of a complaint by a third
party;
(d) the reporting of the violation to EPA
(or other government agency) by a
"whistleblower" employee, rather than by
one authorized to speak on behalf of the
regulated entity; or
(e) imminent discovery of the violation by
a regulatory agency;
5. Correction and Remediation
The regulated entity corrects the violation
within 60 days, certifies in writing that
violations have been corrected, and takes
appropriate measures as determined by EPA
to remedy any environmental or human harm
due to the violation. If more than 60 days
will be needed to correct the violations), the
regulated entity must so notify EPA in
writing before the 60-day period has passed.
Where appropriate, EPA may require that to
satisfy conditions 5 and 6, a regulated entity
enter into a publicly available written
agreement, administrative consent order or
judicial consent decree, particularly where
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compliance or remedial measures are
complex or a lengthy schedule for attaining
and maintaining compliance or remediating
harm is required;
6. Prevent Recurrence
The regulated entity agrees in writing to
take steps to prevent a recurrence of the
violation, which may include improvements
to its environmental auditing or due
diligence efforts;
7. No Repeat Violations
The specific violation (or closely related
violation) has not occurred previously within
the past three years at the same facility, or is
not part of a pattern of federal, state or local
violations by the facility's parent
organization (if any), which have occurred
within the past five years. For the purposes
of this section, a violation is:
(a) any violation of federal, state or local
environmental law identified in a judicial or
administrative order, consent agreement or
order, complaint, or notice of violation,
conviction or plea agreement; or
(b) any act or omission for which the
regulated entity has previously received
penalty mitigation from EPA or a state or
local agency.
8. Other Violations Excluded
The violation is not one which (i) resulted
in serious actual harm, or may have
presented an imminent and substantial
endangerment to, human health or the
environment, or (ii) violates the specific
terms of any judicial or administrative order,
or consent agreement
9. Cooperation
The regulated entity cooperates as
requested by EPA and provides such
information as is necessary and requested by
EPA to determine applicability of this policy.
Cooperation includes, at a minimum,
providing all requested documents and
access to employees and assistance in
investigating the violation, any
noncompliance problems related to the
disclosure, and any environmental
consequences related to the violations.
E. Economic Benefit
EPA will retain its full discretion to
recover any economic benefit gained as a
result of noncompliance to preserve a "level
playing field" in which violators do not gain
a competitive advantage over regulated
entities that do comply. EPA may forgive the
entire penalty for violations which meet
conditions 1 through 9 in section D and, in
the Agency's opinion, do not merit any
penalty due to the insignificant amount of any
economic benefit
F. Effect on State Law, Regulation or Policy
EPA will work closely with states to
encourage their adoption of policies that
reflect the incentives and conditions outlined
in this policy. EPA remains firmly opposed to
"statutory environmental audit privileges that
shield evidence of environmental violations
and undermine the public's right to know, as
well as to blanket immunities for violations
that reflect criminal conduct, present serious
threats or actual harm to health and the
environment, allow noncomplying companies
to gain an economic advantage over their
competitors, or reflect a repeated failure to
comply with federal law. EPA will work with
states to address any provisions of state audit
privilege or immunity laws that are
inconsistent with this policy, and which may
prevent a timely and appropriate response to
significant environmental violations. The
Agency reserves its right to take necessary
actions to protect public health.or the......
environment by enforcing against any
violations of federal law.
G. Applicability
(1) This policy applies to the assessment of
penalties for any violations under all of the
federal environmental statutes that EPA
administers, and supersedes any inconsistent
provisions in media- specific penalty or
enforcement policies and EPA's 1986
Environmental Auditing Policy Statement
(2) To the extent that existing EPA
enforcement policies are not inconsistent, they
will continue to apply in conjunction with this
policy. However, a regulated entity that has
received penalty mitigation for satisfying
specific conditions under this policy may not
receive additional penalty mitigation for
satisfying the same or similar conditions
under other policies for the same violations),
nor will this policy apply to violations which
have received penalty mitigation under other
policies.
(3) This policy sets forth factors for
consideration that will guide the Agency in
the exercise of its prosecutorial discretion. It
states the Agency's views as to the proper
allocation of its enforcement resources. The
policy is not final agency action, and is
intended as guidance. It does not create-any
rights, duties, obligations, or defenses,
implied or otherwise, in any third parties.
(4) This policy should be used whenever
applicable in settlement negotiations for both
administrative and civil judicial enforcement
actions. It is not intended for use in pleading,
at hearing or at trial. The policy may be
applied at EPA's discretion to the settlement
of administrative and judicial enforcement
actions instituted prior to, but not yet
resolved, as of the effective date of this
policy. H. Public Accountability
(1) Within 3 years of the effective date of
this policy, EPA will complete a study of the
effectiveness of the policy in encouraging:
(a) changes in compliance behavior
within the regulated community, including
improved compliance rates;
(b) prompt disclosure and correction of
violations, including timely and accurate
compliance with reporting requirements;
(c) corporate compliance programs that
are successful in preventing violations,
improving environmental performance, and
promoting public disclosure;
(d) consistency among state programs that
provide incentives for voluntary compliance.
EPA will make the study available to the
public.
(2) EPA will make publicly available the
terms and conditions of any compliance
agreement reached under this policy,
including the nature of the violation, the
remedy, and the schedule for returning to
compliance.
I. Effective Date
This policy is effective January 22,1996.
Dated: December 18,1995.
Steven A. Herman,
Assistant Administrator for Enforcement and
Compliance Assurance. [FR Doc. 95-31146
Filed 12-21-95; 8:45 am]
BILLING CODE 6560-50-P
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG94
Date Signed: January 1996
ICR Manual for Bench and Pilot-Scale Treatment Studies
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
814/B-96-003
NCEPI #:
814/B-96-003
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG95
Date Signed: February 16,1996
MEMORANDUM
SUBJECT: Guidance on the Process for Review of Enforcement Actions Against Tribal
Facilities
FROM: Steven A. Herman, Assistant Administrator
Office of Enforcement and Compliance Assurance
TO: Deputy Regional Administrators
Jonathon Z. Cannon, General Counsel
Robert Perciasepe, Assistant Administrator
Office of Water
The purpose of this memorandum is to clarify the process to be used for seeking
Headquarters concurrence on proposed enforcement actions against tribal facilities (stemming
from the Indian Policy Implementation Guidance, November 1984, signed by Alvin L. Aim,
Deputy Administrator; see WSG 23 of this manual). This clarification is necessary because of
the reorganizations of the Enforcement and Indian Programs at EPA Headquarters.
The 1984 Indian Policy Implementation Guidance states that Regional Administrators
proposing to initiate EPA actions against Tribal facilities through the judicial or administrative
process should first obtain concurrence from the Assistant Administrator for Enforcement and
Compliance [Monitoring], who will act in consultation with the Assistant Administrator for
External Affairs and the General Counsel. In emergency situations, the Regional Administrator
may issue emergency Temporary Restraining Orders, provided that the appropriate procedures
set forth in Agency delegations for such actions are followed.
At the time of the Implementation Guidance, External Affairs and its Office of Federal
Activities housed EPA's Indian program. Since that time, responsibility for the program has
moved to the American Indian Environmental Office (AIEO). Additionally OECA's Office of
Federal Activities no longer has overall tribal enforcement responsibility for EPA. Therefore, I
am asking the Office of Regulatory Enforcement (ORE), or where appropriate, the Office of Site
Remediation Enforcement (OSRE), on my behalf, to consult with the Office of General Counsel
and AIEO, to coordinate policy and management issues of proposed enforcement actions against
facilities owned and managed by tribal governments.
ORE, or OSRE, will, prior to making enforcement recommendations to the Assistant
Administrator, directly communicate and coordinate with the Office of Criminal Enforcement,
Forensics, and Training (OCEFT). ORE, or OSRE, will then, in a timely manner, make
appropriate recommendations and advise the Assistant Administrator regarding options for civil
1
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WSG95
actions. Nothing herein is intended to infringe upon the delegated authority of OCEFT to
determine which alleged environmental violations warrant investigation or referral io the
Department of Justice.
cc: OECA Office Directors
Regional Counsels
Terry Williams, AIEO
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 96
Date Signed: April 1996
DBP/ICR Analytical Methods Manual -
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
814/B-96-002
NCEPI #:
814/B-96-002
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG97
Date Signed: April 1996
ICR Microbial Laboratory Manual
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
600/R-95/178
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG98
Date Signed: April 1996
ICR Sampling Manual -
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
814/B-96-001
NCEPI #:
814/B-96-001
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 99
Date Signed: April 1996, September 1996
ICR Water Utility Database System Users' Guide (manual and six disks), April 1996
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
814-B-96-004
NCEPI #:
814/B-96-004
NTIS #:
PB96-157219
ICR Water Utility Database System Users' Guide (instructions and three disks), September
1996
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
814/B-96-004a
NCEPI #:
814/B-96-004a
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WSG 100 is outdated and has been deleted.
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WSG 101-110
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WSG101 is outdated and has been deleted.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG102
Date Signed: June 3,1996
Federal Register/Vol. 61, No. 107/Monday, June 3,1996/Notices pp, 27983-27987
Part IV: Environmental Protection Agency, Interim Policy on Compliance Incentives for Small
Businesses; Notice.
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-5512-7]
Interim Policy on Compliance Incentives for
Small Businesses
AGENCY: Office of Enforcement and
Compliance Assurance, EPA.
ACTION: Notice of final policy.
SUMMARY: The Office of Enforcement and
Compliance Assurance (EPA) is issuing this
Final Policy on Compliance Incentives for
Small Businesses. This Final Policy is
intended to promote environmental
compliance among small businesses by
providing them with incentives to participate
in compliance assistance programs or to
conduct environmental audits and to then
promptly correct violations. The Policy
accomplishes this in two ways: by setting
forth guidelines for the Agency to reduce or
waive penalties for small businesses that
make good faith efforts to correct violations,
and by providing guidance for States and
local governments to offer these incentives.
EFFECTIVE DATE: This Policy is effective
June 10,1996.
FURTHER INFORMATION CONTACT:
David Hindin, 202-564-2235, Office of
Regulatory Enforcement, Mail Code 2248-A,
or Karin Leff, 202-564-7068, Office of
Compliance, Mail Code 2224-A, United
States Environmental Protection Agency,
401 M Street, S.W., Washington, D.C.
20460.
SUPPLEMENTARY INFORMATION: '
Pursuant to this Policy, EPA will refrain
from initiating an enforcement action
seeking civil penalties, or will mitigate civil
penalties, whenever a small business makes a
good faith effort to comply with
environmental requirements by receiving
on-site compliance assistance or promptly
disclosing the findings of a voluntarily
conducted environmental audit, subject to
certain conditions. These conditions require .
that the violation: is the small business's first
violation of the particular requirement; does
not involve criminal conduct; has not and is
not causing a significant health, safety or
environmental threat or harm; and is
remedied within the corrections period.
Moreover, EPA will defer to State actions
that are consistent with the criteria set forth
in this Policy.
This Final Policy supersedes the Interim
version of the Policy issued in June 1995.
See 60 FR 32675, June 23,1995. The
Agency revised the Interim version based on
the comments we received from the public in
response to the Federal Register notice, as
well as the comments we received from EPA
Regional offices and States. The major
change in this final version of the Policy is to
allow small businesses to obtain the penalty
relief provided by this Policy not only by
using on-site compliance assistance, but also
by conducting an environmental audit, and
promptly disclosing and correcting the
violations. There are two reasons for this
change. First, this addresses the major
criticism of the Interim Policy that there are
few on-site compliance assistance programs
sponsored or run by government agencies.
Thus, this change enables more small
businesses to use the Policy. Second, fairness
suggests that if small businesses who seek
tax-payer funded compliance assistance from
the government can get penalty relief, then
businesses who spend their own money to do
an audit, should be able to get similar relief.
We also have slightly modified the penalty
relief guidelines in section F of the Policy.
Guidelines I and 2 remain the same as they
were in the June 1995 Interim version. We
have added a new third guideline which
states:
3. If a small business meets all of the criteria,
except it has obtained a significant economic
benefit from the violations) such that it may have
obtained an economic advantage over its
competitors, EPA will waive up to 100% of the
gravity component of the penalty, but may seek the
full amount of any economic benefit associated
with the violations. EPA retains this discretion to
ensure that small businesses that comply with
public health protections are not put at serious
marketplace disadvantage by those who have not
complied. EPA anticipates that this will occur very
infrequently.
This new guideline is necessary to ensure
that we continue to provide a national level
playing field. Small businesses that make
significant expenditures to comply with the
law should not be put at an economic
disadvantage by those who did not comply.
Most of the other changes in the final Policy
are clarifications or editorial in nature. The
entire text of the Policy appears below.
Dated: May 10,1996.
Steven A. Herman,
Assistant Administrator, Office of
Enforcement and Compliance Assurance,
United States Environmental Protection
Agency.
A. Introduction
This document sets forth the U.S.
Environmental Protection Agency's Policy on
Compliance Incentives for Small Businesses.
This Policy is one of the 25 regulatory
reform initiatives announced by President
Clinton on March 16, 1995, and implements,
in part, the Executive Memorandum on
Regulatory Reform, 60 FR 20621, April 26,
1995. The Executive Memorandum
provides in pertinent part:
To the extent permitted by law, each agency
shall use its discretion to modify the penalties for
small businesses in the following situations.
Agencies shall exercise their enforcement
discretion to waive the imposition of all or a
portion of a penalty when the violation is corrected
within a time period appropriate to the violation in
question. For those violations that may take longer
to correct than the period set by the agency, the
agency shall use its enforcement discretion to
waive up to 100 percent of the financial penalties if
the amounts waived are used to bring the entity
into compliance. The provisions [of this paragraph]
shall apply only where there has been a good faith
effort to comply with applicable regulations and the
violation does not involve criminal wrongdoing or
significant threat to health, safety, or the
environment.
This Policy also implements section 223
of the Small Business Regulatory
Enforcement Fairness Act of 1996, signed
into law by the President on March 29,1996.
As set forth in this Policy, EPA will
refrain from initiating an enforcement action
seeking civil penalties, or will mitigate civil
penalties, whenever a small business makes a
good faith effort to comply with
environmental requirements by receiving
compliance assistance or promptly disclosing
the findings of a voluntarily conducted
environmental audit, subject to certain
conditions. These conditions require that the
violation: is the small business's first
violation of the particular requirement; does
not involve criminal conduct; has not and is
1
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WSG 102
not causing a significant health, safety or
environmental threat or harm; and is
remedied within the corrections period.
Moreover, EPA will defer to State actions
that are consistent with the criteria set forth
in this Policy.
B. Background
The Clean Air Act (CAA) Amendments of
1990 require that States establish Small
Business Assistance Programs (SBAPs) to
provide technical and environmental
compliance assistance to stationary sources.
On August 12,1994, EPA issued an
enforcement response policy for stationary
sources which provided that an authorized or
delegated state program may, consistent with
federal requirements, either
(I) Assess no penalties against small businesses
that voluntarily seek compliance assistance and
coned violations revealed as a result of compliance
assistance within a limited period of time; or
(2) Keep confidential information that identifies
the names and locations of specific small
businesses with violations revealed through
compliance assistance, where the SBAP is
independent of the state enforcement program.
In a further effort to assist small
businesses to comply with environmental
regulations, and to achieve health, safety,
and environmental benefits, the Agency is
adopting a broader policy for all media
programs, including water, air, toxics, and
hazardous waste.
C. Purpose
This Policy .is intended to promote
environmental compliance among small
businesses by providing incentives for them
to participate in on- site compliance
assistance programs and to conduct
environmental audits. Further, the Policy
encourages small businesses to expeditiously
remedy all violations discovered through
compliance assistance and environmental
audits. The Policy accomplishes this in two
ways: by setting forth a settlement penalty.
Policy that rewards such behavior, and by
providing guidance for States and local
governments to offer these incentives.
D. Applicability
This Policy applies to facilities owned by
small businesses as defined here. A small
business is a person, corporation,
partnership, or other entity who employs 100
or fewer individuals (across all facilities and
operations owned by the entity).' This
definition is a simplified version of the CAA
Sec. 507 definition of small business. On
balance, EPA determined that a single
definition would make implementation of
this Policy straightforward and would allow
for consistent application of the Policy in a
multimedia context
This Policy is effective June 10,1996 and
on that date supersedes the Interim version of
this Policy issued on June 13,1995 and the
September 19,1995 Qs and As guidance on
-the Interim version. This Policy applies to all
civil judicial and administrative enforcement
actions taken under the authority of the
environmental statutes and regulations that
EPA administers, except for the Public
Water System Supervision Program under
the Safe Drinking Water Act1 This Policy
applies to all such actions filed after the
effective date of this Policy, and to all
pending cases in which the government has
not reached agreement in principle with the
alleged violator on the amount of the civil
penalty.
This Policy sets forth how the Agency
expects to exercise its enforcement discretion
in deciding on an appropriate enforcement
response and determining an appropriate
civil settlement penalty for violations by
small businesses. It states the Agency's views
as to the proper allocation of enforcement
resources. This Policy is not final agency
action and is intended as guidance. It does
not create any rights, duties, obligations, or
defenses, implied or otherwise, in any third
parties. This Policy is to be used for
settlement purposes and is not intended for
use in pleading, or at hearing or trial. To the
extent that this Policy may differ from the
terms of applicable enforcement response
policies (including penalty policies) under
media-specific programs, this document
supersedes those policies. This Policy
supplements, but does not supplant the
August 12,1994 Enforcement Response
Policy for Treatment of Information
Obtained Through Clean Air Act Section
507 Small Business Assistance Programs.
E. Criteria for Civil Penalty Mitigation
EPA will eliminate or mitigate its
settlement penalty demands against small
businesses based on the following criteria:
'The number of employees should be considered as full-time
equivalents on an annual basil, including contract employees.
Full-time equivalents means 2,000 hours per year of
employment For example, see 40 CFR §3713.
This Policy does not apply to die Public Water System
Supervision (PWSS) Program because it alrady has an
active compliance assistance program and EPA has a policy
to address the special needs of small communities. See
November 1995 Policy on Flexible State Enforcement
Response to Small Community Violations.
I. The small business has made a good
faith effort to comply with applicable
environmental requirements as demonstrated
by satisfying either a or b. below.
a Receiving on-site compliance assistance
from a government or government supported
program that offers services to small
businesses (such as a SBAP or state
university), and the violations are detected
during the compliance assistance. If a small
business wishes to obtain a corrections
period after receiving compliance assistance
from a confidential program, the business
must promptly disclose the violations to the
appropriate regulatory agency.
b. conducting an environmental audit
(either by itself or by using an independent
contractor) and promptly disclosing in
writing to EPA or the appropriate state
regulatory agency all violations discovered as
part of the environmental audit pursuant to
section H of this Policy.
For both a and b. above, the disclosure of
the violation must occur before the violation
was otherwise discovered by, or reported to
the regulatory agency. See section I.I of the
Policy below. Good faith also requires that a
small business cooperate with EPA and
provide such information as is necessary and
requested to determine applicability of this
Policy.
2. This is the small business's first
violation of this requirement This Policy
does not apply to businesses that have
previously been subject to an information
request, a warning letter, notice of violation,
field citation, citizen suit, or other
enforcement action by a government agency
for a violation of that requirement within the
past three years. This Policy does not apply if
the small business received penalty
mitigation pursuant to this Policy for a
violation of the same or a similar
requirement within the past three years. If a
business has been subject to two or more
enforcement actions for violations of
environmental requirements in the past five
years, this Policy does not apply even if this
is the first violation of this particular
requirement
3. The business corrects the violation
within the corrections period set forth below.
Small businesses are expected to remedy
the violations within the shortest practicable
period of time, not to exceed 180 days
following detection of the violation.
However, a small business may take an
additional period of 180 days, i.e., up to a
period of one year from the date the violation
is detected, only if necessary to allow a small
business to correct the violation by
implementing pollution prevention measures.
For any violation that cannot be corrected
within 90 days of detection, the small
business should submit a written schedule, or
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WSG 102
the agency should issue a compliance order
with a schedule, as appropriate. Correcting
the violation includes remediating any
environmental harm associated with die
violation,' as well as implementing steps to
prevent a recurrence of the violation.
4. The Policy applies if:
a. The violation has not caused actual
serious harm to public health, safety, or the
environment; and
b. The violation is not one that may
present an imminent and substantial
endangerment to public health or the
environment; and
c. The violation does hot present a
significant health, safety or environmental
threat (e.g., violations involving hazardous
or toxic substances may present such
threats); and
d. The violation does not involve criminal
conduct
F. Penalty Mitigation Guidelines
EPA will exercise its enforcement
discretion to eliminate or mitigate civil
settlement penalties as follows.
I. EPA will eliminate the civil settlement
penalty in any enforcement action if a small
business satisfies all of the criteria in section
E.
2. If a small business meets all of the
criteria, except it needs a longer corrections
period than provided by criterion 3 (i.e.,
more than 180 days for non-pollution
prevention remedies, or 360 days for
pollution prevention remedies), EPA will
waive up to 100% of the gravity component
of the penalty, but may seek the full amount
of any economic benefit associated with the
violations.4
3. If a small business meets all of the
criteria, except it has obtained a significant
economic benefit from the violation(s) such
that it may have obtained an economic
advantage over its competitors, EPA will
waive up to 100% of the gravity component
of the penalty, but may seek the full amount
of the significant economic benefit
associated with the violations. EPA retains.
this discretion to ensure that small
businesses that comply with public health
protections are not put at a serious
marketplace disadvantage by those who have
not complied. EPA anticipates that this
'If significant effort! will be required to remediate the harm.
the Policy will not apply since criterion 4 Is likely not to have
been satisfied.
The "gravity component1' of the penalty includes
everything except the economic benefit amount. In
determining the appropriate amount of the gravity
component of the penalty to mitigate. EPA should consider
the nature of the violations, the duration of the violations, the
environmental or public health impacts of the violations,
good faith effort! by the small business to promptly remedy
the violation, and the facility's overall record of compliance
with environmental requirements.
situation will occur very infrequently. If a
small business does not fit within guidelines
1,2 or 3 immediately above, this Policy does
not provide any special penalty mitigation.
However, if a small business has otherwise
made a good faith effort to comply, EPA has
discretion, pursuant to its applicable
enforcement response or penalty policies, to
refrain from filing an enforcement action
seeking civil penalties or to mitigate its
demand for penalties.9 Further, these policies
allow for mitigation of the penalty where
• there is a documented inability to pay all or a
portion of the penalty, thereby placing
emphasis on enabling the small business to
finance compliance. See Guidance on
Determining a Violator's Ability to Pay a
Civil Penalty of December 1986. Penalties
also may be mitigated pursuant to the Interim
Revised Supplemental Environmental
Projects Policy of May 199S (60 F.R. 24856,
S/IO/9S) and Incentives for Self-Policing:
Discovery, Disclosure, Correction and
Prevention of Violations Policy of December
199S (60 FR 66706, December 22,1996).
G. Compliance Assistance
1. Definitions and Limitations
Compliance assistance6 is information or
assistance provided by EPA, a State or
another government agency or government
supported entity to help the regulated
community comply with legally mandated
environmental requirements. Compliance
assistance does not include enforcement
inspections or enforcement actions.7
In its broadest sense, the content of
compliance assistance can vary greatly,
ranging from basic information on the legal
requirements to specialized advice on what
technology may be best suited to achieve
compliance at a particular facility.
Compliance assistance also may be delivered
in a variety of ways, ranging from general
outreach through the Federal Register or
other publications, to conferences and
computer bulletin boards, to on-site
assistance provided in response to a specific
request for help.
The special penalty mitigation
considerations provided by this Policy only
apply to civil violations which were
identified as part of an on-site compliance
assistance visit to the facility. If a small
'For ample, in same media specific peniliy policies, if
good faith efforts an undertaken, the penalty calculation
automatically factors in such effort! through a potentially
smaller economic benefit or gravity amount
"ompliance assistance is sometimes called compliance
qi^mimjiia or technical assistance.
'Of course, during an inspection or enforcement action, a
facility may receive suggestions and information from the
regulatory authority about how to correct and prevent
violations.
business wishes to obtain a corrections
period after receiving compliance assistance
from a confidential program, the business
must promptly disclose the violations to the
appropriate regulatory agency and comply
with die other provisions of this Policy. This
Policy is restricted to on-site compliance
assistance because the other forms of
assistance (such as hotlines) do not expose a
small business to an increased risk of
enforcement and do not provide the
regulatory agency with a simple way to
determine when the violations were detected
and thus when the violations must be
corrected. In short, small businesses do not
need protection from penalties as an
incentive to use the other types of
compliance assistance.
2. Delivery of On-Sitc Compliance
Assistance by Government Agency or
Government Supported Program
Before on-site compliance assistance is
provided under this Policy or a similar State
policy, businesses should be informed of.'
how the program works and their obligations
to promptly remedy any violations
discovered. Ideally, before on-site
compliance assistance is provided pursuant
to this Policy or similar State policy, the
agency should provide the facility with a
document (such as this Policy) explaining
how the program works and the
responsibilities of each party. The document
should emphasize the responsibility of the
facility to remedy all violations discovered
within the corrections period and the types of
violations that are excluded from penalty
mitigation (e.g., violations that caused
serious harm). The facility should sign a
simple form acknowledging that it
understands the Policy. Documentation
explaining the nature of the compliance
assistance visit and the penalty mitigation
guidelines is essential to ensure that the
facility understands the Policy.
At die end of the compliance assistance
visit, the government agent should provide
the facility with a list of all violations
observed and report within 10 days any
additional violations identified resulting
from the visit, but not directly observed, e.g.,
results from review and analysis of data or
information gathered during the visit. Any
violations that do not fit within the penalty
mitigation guidelines in the Policy-e.g.,
those that caused serious harm-should be
identified. If the violations cannot all be
corrected within 90 days, the facility should
be requested to submit a schedule for
remedying the violations or a compliance
order setting forth a schedule should be
issued by the agency.
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WSG 102
3. Requests for On-Site Compliance
Assistance
EPA, States and other government
agencies do not have the resources to provide
on-site compliance assistance to all small
businesses that request such assistance. This
Policy does not create any right or
entitlement to compliance assistance. A
small business that requests on-site
compliance assistance will not necessarily
receive such assistance. If a small business
requests on-site compliance assistance (or
any other type of assistance) and the
assistance is not available, the government
agency should provide a prompt response
indicating that such assistance is not
available. The small business should be
referred to other public and private sources
of assistance that may be available, such as
clearinghouses, hotlines, and extension
services provide by some universities. In
addition, the small business should be
informed that it may obtain the benefits
offered by this Policy by conducting an
environmental audit pursuant to the
provisions of this Policy.
H. Environmental Audits
For purposes of this Policy, an
environmental audit is defined as "a
systematic, documented, periodic and
objective review by regulated entities of
facility operations and practices related to
meeting environmental requirements." See
EPA's new auditing policy, entitled
Incentives for Self-Policing, 60 FR 66706,
66711, December 22,1995.
The violation must have been discovered
as a result of a voluntary environmental
audit, and not through a legally mandated
monitoring or sampling requirement
prescribed by statute, regulation, permit,
judicial or administrative order, or consent
agreement For example, the Policy does not
apply to:
(1) emissions violations detected through
a continuous emissions monitor (or
alternative monitor established in a permitX
where any such monitoring is required;
(2) violations of National Pollutant
Discharge Elimination System (NPDES)
discharge limits detected through required
sampling or monitoring; or
(3) violations discovered through an audit
required to be performed by the terms of a
consent order or settlement agreement.
The small business must fully disclose a
violation within 10 days (or such shorter
period provided by law) after it has
discovered that the violation has occurred, or
may have occurred, in writing to EPA or the
appropriate state or local government
agency.
I. Enforcement
To ensure that this Policy enhances and
does not compromise public health and the
environment, the following conditions apply:
I; Violations detected through
inspections, field citations, reported to an
agency by a member of the public or a
"whistleblower" employee, identified in
notices of citizen suits, or previously
reported to an agency as required by
applicable regulations or permits, remain
•fully enforceable.
2. A business is subject to all applicable
enforcement response policies (which may
include discretion whether or not to take
formal enforcement action) for all violations
that had been detected through compliance
assistance and were not remedied within the
corrections period. The penalty in such
action may include the time period before
and during the correction period.
3. A State's or EPA's actions in providing
compliance assistance is not a legal defense
in any enforcement action. This Policy does
not limit EPA or a state's discretion to use
information on violations revealed through
compliance assistance as evidence in
subsequent enforcement actions.
4. If a field citation is issued to a small
business (e.g., under the Underground
Storage Tank program8), the small business
may provide information to the Agency to
show that specific violations cited in the
field citation are being remedied under a
corrections schedule established pursuant to
this Policy of similar State policy. In such a
situation, EPA would exercise its
enforcement discretion not to seek civil
penalties for those violations.
J. Applicability to States'
EPA recognizes that states are partners in
enforcement and compliance assurance.
Therefore, EPA will defer to state actions in
delegated or approved programs that are
generally consistent with the criteria set forth
in this Policy. Whenever a State agency
provides a correction period to a small
business pursuant to this Policy or a similar
policy, the agency should notify the
appropriate EPA Region.
This notification will assure that federal
and state enforcement responses are properly
coordinated.
K. Public Accountability
Within three years of the effective date of
mis Policy, EPA will conduct a study of the
effectiveness of this Policy in promoting
compliance among small businesses. EPA
will make the study available to the public.
EPA will make publicly available the terms
of any EPA agreements reached under this
Policy, including the nature of the
violation(s), the remedy, and the schedule for
returning to compliance.
[FR Doc. 96-13713 Filed 5-31-96; 8:45 am]
BILLINO CODE 6560-50-P
The Underground Storage Tank (UST) field citation
program providei for substantially reduced penalties in
exchange Tor the rapid correction of certain UST violation
for first time violators!. See Guidance for FtdtralFiiU
Citation Enforcement. OSWER Dinclnt 9610.6. October
1993.
•States includes triba.
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ASSOCIATION OF STATE DRINKING WATER ADMINISTRATORS
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG 103
Date Signed: July 11,1996
MEMORANDUM
SUBJECT: Release of Final Alternative Technology Approval Protocol
FROM: Cynthia C. Dougherty Vanessa M. Leiby
Director Executive Director
Office of Ground Water Association of State
and Drinking Water Drinking Water Administrators
TO: All Interested Parties
We are pleased to announce completion of the enclosed Stare Alternative Technology
Approval Protocol dated June 1996. This protocol has been developed in a cooperative effort
among EPA, ASDWA, state drinking water program personnel, industry representatives, and
others with a stake in providing streamlined, consistent procedures for use by systems to
facilitate stare acceptance of new drinking water treatment technologies.
As mentioned in the document's introduction, the generic protocol establishes a basic
framework for approval of technologies. It is not meant to replace current state plan review and
approval processes but sets a common protocol for the type of information to be submitted to
states in order for new technologies to be considered for approval.
Tne intent of the protocol is to streamline the approval process and to improve the
consistency of response across states by establishing minimum criteria required of all applicants.
It is expected that the use of the protocol will decrease the need for pilot or demonstration
projects over time. A key to this effort will be the development of an appropriate mechanism
that states, water systems, and engineers can use to share data and information about treatment
approvals and effectiveness.
If you have any questions regarding this document, please contact Vanessa Leiby or
Bridget O'Grady of ASDWA at (202) 293-7655, Steve Clark of EPA Headquarters at (202) 260-
7575, or Marc Parrotta of EPA Headquarters ac (202) 260-3035.
Enclosure
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WSG 103
State Alternative Technology Approval Protocol
Introduction
The purpose of this document is to identify criteria and information required by states to
approve alternative technologies for public water system compliance with drinking water
regulations. The generic protocol establishes a basic framework for approval of technologies
ranging from point-of-use to centralized treatment for water systems. This does not replace the
current state plan approval process, nor does compliance with the protocol imply automatic
approval of a given technology, but it sets a common protocol for the type of information
required by the state to consider approval of alternative technologies (i.e., those that fall outside
of the realm of state-identified conventional technologies). More specific criteria will be
developed for each drinking water regulation for which alternative technologies may apply.
States typically take a conservative approach to plan review and approval, relying most
often on well-proven, accepted technologies to ensure that the rule will be implemented
effectively and that public health will be protected. The dilemma is how to obtain approval for
new or alternative technologies in a state, and how to ensure that, to the greatest extent possible,
approvals transfer from state to state without costly, time consuming, or redundant pilot studies
or other requirements.
This protocol, which was developed by representatives from the states, United States
Environmental Protection Agency (EPA), manufacturers, third party certifiers, and other
interested parties attempts to provide general guidelines that will promote consistency among the
states and let manufacturers, suppliers, consulting engineers, and system owners clearly know
what kinds of data will be required before a technology can be approved.
Background
States regulate over 186,000 public water systems under the Safe Drinking Water Act
(SDWA). Of this total, 56,747 (30%) are community (CWS), 23,639 (13%) are non-transient
non-community (NTNC), and 106,438 (57%) are transient non-community (NCWS). Ninety-six
percent of these systems are small (serving less than 3,300 persons). Eighty-five percent of these
small systems are considered'very small, serving less than 500 persons (30% community and
NTNC water systems and 55% NCWS systems.1) Although these systems serve a relatively
small percentage of the total number of persons served by public water systems, they are
responsible for over 90 percent of the violations. While the majority of these violations are for
failure to monitor, small systems are increasingly faced with the need to install treatment
technologies. As more drinking water regulations have been promulgated, the requirements have
become much more complex, requiring labor and resource intensive activities in order to comply.
1 U.S. Environmental Protection Agency, FY-94 National Compliance Report
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WSG 103
Small systems are typically characterized by having poor economies of scale, inadequate
training on regulations, lack of certified operators, and a general inability to comply. A relatively
recent regulation, the Surface Water Treatment Rule (SWTR), has brought home this problem
very clearly. The standard technology for compliance with the SWTR is filtration treatment,
including conventional filtration, direct filtration, diatomaceous earth, and slow sand filtration.
Most small systems, however, are incapable of designing, constructing, funding, operating and
maintainin complex filtration facilities.
States, EPA, and manufacturers have for several years attempted to promote the
development and approval of "alternative technologies," particularly for small systems, that will
meet the requirements, be affordable to the customers of the system, and be easy to operate and
maintain.
Problem Identification
The first step in the approval process is to identify the problem for which a technical
solution is sought. It may be a need to meet the SWTR or meet a specific drinking water
standard such as arsenic. When evaluating the system's needs, it is important to look not only at
the immediate short-term needs, but also at future needs. This would include the ease of adding
additional treatment to the current treatment train. It is also important that the state be sure that a
technology installed today will not have a negative impact on other current drinking water
regulations, permitting requirements, or regulations that will be proposed in the near future
including regulations related to waste disposal.
Determination of Available Alternatives
All available alternatives including reconstruction of existing wells, locating new water
sources, connection to other existing systems, or treatment should be evaluated. Where
alternative treatment is selected as an option, this protocol should be used.
Compatibility with Existing Facilities
The submittal should address the following: source of water (groundwater or surface
water); water quality characteristics; pumping capacity of source; backwashing capacity; piping
materials; storage facilities (elevated, ground, hydro-pneumatic tank); power availability; existing
treatment units; location of facilities (indoors/outdoors, above grade, accessible by foot or
vehicle); waste disposal facilities; existing monitoring and reporting; other water quality
concerns; and drawings showing existing and proposed facilities.
Determination of Technology Efficacy
Once a system's problems are identified, the state will determine whether a proposed
technology could be an alternative solution to the system's problems based on information
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WSG 103
provided by the applicant. In order for the states to accomplish this task, the water system should
supply the following information and data to the state:
1) Objective and verifiable test data that support the treatment system performance
claims. The information should be sufficient to determine the pathogen removal
credits (i.e., virus, giardia), if applicable, compliance with the SDWA Maximum
Contaminant Level(s) of concern, appropriate performance standards, and
monitoring frequency for the technology. This information can be obtained from
the following sources (in order of preference):
Accredited third party verifier or certifier
Recognized third party independent test data
Pilot study data
Approval from other states, countries, or Federal agencies
Manufacturers test data
2) Product and Process Technical Information
Manufacturers' technical information, specifications, and data on
equipment/process must be submitted. This includes (but is not limited to):
Shop drawings
Process schematics and descriptions
Power requirements
Capacity and dimensional data
Required auxiliary equipment
Information on conditions for and limitations on process applicability
Quality control processes
3) Verification of efficacy under site-specific conditions
Source water quality, considering seasonal variation
Finished water quality requirements
Finished water quality produced, including consistency
Design flow rates
Useful life of treatment unit
External environmental issues
Storage requirements, space requirements, accessibility
Other treatment needs such as pre or post-treatment
Range of field extremes
Worst case/best case adaptability to various raw water qualities
Differential pressure conditions (i.e., 10 psi v. 100 psi)
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WSG 103
• Reliability of treatment facilities including redundancy of equipment if
necessary
• Operational conditions (e.g., stopping and starting)
4) Indication of Availability of Technical Support, such as:
• Water treatment system manufacturer or supplier support
• Water treatment system supplier qualifications
• Operator training mechanism
• Laboratory services
• Independent engineering consultant
Materials Safety
It is important that the components of the product or technology meet basic materials
safety standards to ensure that they do not introduce harmful chemicals or leachates into the
finished water. This may be accomplished in the following manner:
1) Materials safety verification (in order of preference):
• Compliance with ANSI/NSF standards
• Compliance with appropriate Food and Drug Administration Title 21 Code of
Federal Regulations for Food Additives
Operational Efficacy And Cost-Effectiveness
The state and the supplier will want to know if operational and maintenance requirements
meet the needs and expertise of the system operator or owner and if the technology is cost-
effective. While overall costs of the technology and its impact on the water supplier and the
consumer are important, affordability may or may not be a prerequisite to approving the
technology or issuing permits. In some cases, a more expensive technology may be more
appropriate in the long run if it is easier to operate and has a longer life expectancy or lower
operation and maintenance (O&M) costs. The following information will be submitted:
1) Operation and maintenance requirements
• What control systems does the technology have to eliminate operator error,
especially if the system is highly automated? Is system operator-friendly?
• Reliability features including unit alarms, automatic shutdown, manual
operation in the event of automated system failure, etc.
• Operator expertise required
• Waste disposal needs
• Pretreatment requirements
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WSG 103
Cherilical feed requirements
Basic O&M needs - chemicals, spare parts, labor, instrumentation, energy
requirements, ongoing monitoring
Replacement and maintenance schedule and availability and cost of parts
and servicing instrumentation and controls
Periodic cleaning/down time
Backwashing (frequency, disposal, storage, filter to waste capability)
Auxiliary needs (e.g., buildings, roads, re-generate media)
Manuals needed (e.g., operation and/or equipment repair)
Process flexibility (24 hr/day operation, 8 hr/day, intermittent, seasonal?)
Level of oversight - how often will system need to be inspected
Monitoring of raw water quality, pretreatment effluent water quality, and
finished water quality to verify and ensure assumptions for the design of
the treatment equipment are met
Finished water storage
Response time of equipment supplier, their designee, or other qualified
firm, to non-routine service calls
Provisions for storage, auxiliary treatment, or bypassing in case of
equipment problems.
2) Costs
• Life cycle costs of the system. This may include facilities and
appurtenances as well as component parts that must routinely be replaced
such as membranes, filters, cartridges, power consumption, etc.
• Total system costs. This may include cost per service connection per
month or year, including amortization of initial capital equipment costs
and ongoing O&M costs. Capital costs may include consultant costs,
studies, planning, design, permits, land and easements, construction,
additional taxes, insurance, environmental impact studieslreview
(community acceptance public meetings)
• Training costs
• Administrative costs
• Certification costs
• Monitoring costs
• Regulatory agency fees for technical assistance oversight, operating
permits
• Service labor costs
Costs presented in italics may be obtained from the engineering consultant, the manufacturer, the
equipment supplier, the water system, or other professional organizations, or, in some cases, the
state.
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WSG 103
Technology Approval
While states would prefer information and data from full scale operational facilities, they
may reduce or eliminate extensive piloting for some technologies if they have credible third party
test data that provides information over a range of source water quality conditions or information
from full scale operation of the technology in other applications. Pilot plants or laboratory data
may be adequate to determine the potential capability of the treatment technology, but are no
guarantee that the technology will perform under real world conditions or be cost-effective for
the water system. Acceptance of a technology based only on a performance guarantee may or
may not be sufficient
Upon receipt and review of the information discussed previously (source water
characteristics, unique system operating conditions, treatment alternatives, pertinent past
treatment performance assessments/verification of the recommended process option,
specifications and technical data of the process, and capital and O&M costs) the state regulatory
agency will make one of the following determination(s):
1) The technology application can be accepted without site-specific piloting; or
2) The technology application is acceptable, but with conditional approval for an
established timerrame (i.e. one year, one month, etc.) during which the treatment
performance can be evaluated through monitoring and operational data; or
3) Additional information and data are needed; or
4) Qn-site piloting is still needed due to source water quality or performance
uncertainties; or
5) The technology application is not appropriate for this particular application.
Prior to installation or construction of any proposed alternative technology, final plans
and specifications covering the entire project (not just the alternative technology facilities) must
be submitted by a registered professional engineer (if required by the state) to the reviewing
authority for final approval with or without conditions. This final submittal should address all
aspects of the project (e.g. piping, materials, power, chemical feeds, valving, controls, building
requirements, etc.).
After the period of operation specified by a conditional approval, the monitoring results
and the results of operational data will be reviewed by the state and a determination will be made
as to whether to: 1) grant final approval; 2) grant final approval with conditions; 3) continue
conditional approval for another specified time period; or 4) disapprove the technology pending
futher development by the applicant. The state will supply its rationale for any decision to the
applicant.
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WSG 103
A performance bond, or other guarantee, or lease arrangement may be required to ensure
that if the installed technology fails, the manufacturer will remove or modify the installed
technology and any ancillary equipment at their own cost, and the water system will be refunded
any funds that it put up for purchase, or installation of the technology, consistent with the
contractual agreement between the parties.
Technology Transfer
In order to ensure that information about the approval and implementation of alternative
technologies receives the widest possible dissemination, states are encouraged to share
information about their experiences with alternative technologies. One method for
accomplishing this would be to provide information to the database maintained by the National
Drinking Water Clearinghouse, located at West Virginia University. Other methods for sharing
information are encouraged as well.
8
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WSG 103
ALTERNATIVE TECHNOLOGY APPROVAL PROCESS
1
Problem Identification
Determination of
Available Alternatives
Technology Proposed
and Information Submitted
State Determines:
Technological Efficacy. Materials Safety.
Affardability and Operational Efficacy
based on Information provided by applicant
Is Information
Adequate?
i
1
NO
Conditional
Approval
(for specified period)
±
Additional
Information
Required
1
On-site
Pilot
Required
'New Information
. Adequate?
YES
Technology
Not Appropriate
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG104
Date Issued: August 1996
ICR Reference Manual: Understanding the ICR
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
814-B-96-007
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 105
Date Signed: August 15,1996
MEMORANDUM
SUBJECT: Public Release of EPA Enforcement Information
FROM: Steven A. Herman
Assistant Administrator
TO: All Agency Employees
I. Purpose
This memorandum establishes Agency-wide Guidelines to ensure consistency in the
release or withholding of documents related to EPA enforcement matters, and supersedes the
September 16,1985 document entitled "United States Environmental Protection Agency
Enforcement Document Release Guidelines".
All EPA personnel who participate in and support enforcement actions should exercise
extreme caution in their handling of enforcement-related documents, seek guidance concerning
both written and oral requests for such documents, and ensure that no documents are released
that are prohibited from disclosure or could harm any enforcement proceedings.
The Agency gathers and controls a vast amount of sensitive information. This
information is obtained in various ways. It may be submitted voluntarily by the entity to which it
pertains; it might be submitted as a requirement under an EPA statute or regulatory scheme; it
may be obtained through information requests sent by the Agency; or it may be seized by judicial
process of subpoena or warrant.
Regardless of the manner by which information comes into the possession of EPA, the
agency has numerous responsibilities that attend to the custody and control of sensitive,
enforcement-related information. These responsibilities include an obligation on the Agency and
its employees to balance many competing interests that influence the decision whether or not to
release to the public enforcement-related documents.
H. Goal
The goal of this policy is to conform with the "presumption of disclosure", which is the
foundation of the Freedom of Information Act (FOIA) and is reiterated by Attorney General Janet
Reno hi her October 4,1993) Memorandum for Heads of Departments and Agencies.
The presumption of disclosure does not extend, however, to certain categories of
information such as Confidential Business Information, personal privacy information or
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WSG105
information prohibited from disclosure by statutes (such as the Grand Jury secrecy rule'), nor
does it routinely extend to documents whose release would interfere with enforcement
proceedings.
This policy is intended to encourage the greatest possible disclosure, but without
compromising enforcement matters or violating legal prohibitions against disclosure. The
purpose underlying this policy is to further EPA's mission by enhancing the Agency's ability, to
conduct its business without undue interference and to protect the rights of persons affected by
Agency investigative or enforcement activity; it is not intended to hide information from the
public, nor to curb Agency employees' freedom to have contact with the public. These purposes
are accomplished by balancing the legal protections available to the Agency with the interests of
the public to full access of information. In addition, the policy ensures that the constitutional
protections afforded to criminal targets or defendants are safeguarded.
111. Scope
This policy applies to any document which has been placed into an enforcement file, or is
otherwise being used, for an enforcement purpose. Documents which were not originally filed or
used for an enforcement purpose but are now so used or filed are covered by this policy.
This policy applies not only to those employees assigned to the Office of Enforcement
and Compliance Assurance, but to all Agency personnel who participate in enforcement actions,
including program, regulatory, technical, legal and support personnel.
IV. General Principles
The Freedom of Information Act was enacted based upon the fundamental principle that
an informed citizenry is essential to the democratic process and that the more the American
people know about their government the better they will be governed.
The FOIA also provides a mechanism, in its exemption provisions, to balance several
unique interests that conflict with its underlying principle of disclosure. The Act's exemptions
were designed to guard against specific harms to both governmental and private interests. The
mandatory exemptions dictated that certain information could not be disclosed. The
discretionary exemptions required the agencies to balance competing interests in determining
whether or not to withhold or release certain information.
In the past, the Department of Justice endorsed the withholding of information if federal
agencies had a "substantial legal basis" for doing so. On October 4,1993, the Attorney General
1 See Federal Rules of Criminal Procedure, Rule 6(e). See discussion addressing why
Rule 6(e) is considered a statute for the purposes of Exemption 3, below.
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WSG 105
issued a policy announcing that the Department of Justice would no longer defend an agency's
withholding of information merely because there is a "substantial legal basis". Rather, the policy
declared a "presumption of disclosure", and directed that discretionary exemptions be applied
only after careful consideration of the reasonable expected consequences of disclosure hi each
particular case.
The distinction between mandatory and discretionary exemptions is critical. EPA
personnel must understand that release of prohibited information may subject the agency to
lawsuits, and individuals to disciplinary action, or civil or criminal liability. On the other hand,
the agency is vulnerable to challenge if information is withheld improperly.
V. Withholding Documents
A. Prohibitions Against Disclosure
Statutes such as the Privacy Act and the Trade Secrets Act prohibit disclosure of types of
information within their purview. Moreover, EPA regulations establish that as a matter of policy,
certain infoiil!iai!6n7Sv^nIf hot covered by such statutes, may not be released unless ordered to
do so by a Federal court or in exceptional circumstances2. Releases under "exceptional
circumstances" are determined on a case-by-case basis, and must be approved by the Office of
General Counsel or Regional Counsel.
1. Personal Privacy Information (FOIA Exemption 6)
Exemption 6 of the FOIA exempts from disclosure information relating to an individual,
the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any enforcement-related information related to an individual (whether in one's personal or
entrepreneurial capacity) must always be carefully scrutinized for Exemption 6 applicability.
Information which qualifies for Exemption 6 protection may not be released except by order of a
court of competent jurisdiction, or under "exceptional circumstances".
Exemption 6 permits the withholding of all information about individuals in "personnel,
medical, and similar files, the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy." Personal information, which includes any information about a
particular individual which is identifiable to that individual, may be disclosed only if there is no
expectation of privacy in the information, or if the privacy interest is outweighed by the public
interest in disclosure of the information. Several examples follow in order to illustrate EPA's
practice in implementing Exemption 6:
1Sfig_40CFR§2.119(b).
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WSG 105
Example 1 EPA has relied on Exemption 6 in declining to provide the identities of
individual residents whose drinking water wells or lawn soils have been sampled by the
Superfund program and tested for contamination. In these cases, the Agency has
determined that the privacy interest in not being harassed by PRPs is not outweighed by
the public interest in disclosure of this information.
Example 2 The Agency routinely relies on Exemption 6 to withhold EPA employees'
social security numbers that appear on CERCLA timesheets.
Case law has resulted in clarification of several phrases that are often critical for
interpreting Exemption 6. Below is a summary of how the courts have interpreted these phrases
in construing Exemption 6.
Privacy interest: Encompasses the individual's reasonable expectation of privacy and
control over the dissemination of personal information about himself. Individuals have an
expectation of privacy with respect to information which, by its nature, is personal, embarrassing
or otherwise injurious to the individual. Privacy interests also include the right to be free from
secondary effects of disclosure, such as harassment or unwanted intrusions, even if the
information itself is not inherently harmful.
Public interest: There is a public interest in a particular Agency record if disclosure of
that record sheds light on the operations or activities of the government.
Glomar: Occasionally a FOIA request is worded in such a way that it would not be
possible to deny the record under Exemption 6 without revealing the very information which is
protected under the Exemption. For example, a request seeking the information contained in a
criminal investigation file targeting a named individual would normally be withholdable under
Exemption 6 (and Exemption 7(C)). However, if the Agency denied the FOIA request for such
records in reliance on Exemption 6, the Agency would be revealing the existence of such records,
the very information which is protected. To guard against such inadvertent disclosures, the
Agency may provide a "Glomar" response; that is, neither confirming nor denying the existence
of records in response to all requests for criminal files pertaining to individuals. Before a
"Glomar" response is issued, however, the Office of General Counsel, Finance and Operations
Division, must be consulted."
Example 1 A recent FOIA request from a newspaper sought "copies of any
correspondence since January 1,1990, between [EPA] and [a United States Senator], his
office, his staff, or any of his political organizations" including campaign organizations
which were listed by name in the request. In the response supplying this information to
the newspaper, which included constituent requests forwarded by the Senator's office, the
names of individual constituents, as well as other personal information such as home
addresses and telephone numbers, were redacted.
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WSG 105
Example 2 EPA specifically developed a policy regarding FOIA responses to the public
for a multi-county site contaminated with lead-mining wastes, affecting many residential
properties. The Agency decided that prior to issuing the Agency's response action
decision documents, the Agency would release the lead level information only to the
property owners, to the exclusion of all others.
Example 3 Personal information in enforcement files concerning EPA employees, e.g.,
employees' social security numbers on time sheets, are withheld from FOIA requestors
under Exemption 6.
Example 4 EPA routinely seeks and obtains financial information, including copies of
stare and federal tax returns, from potentially responsible parties (PRPs) in accordance
with Section 104(e)(2)(C) of CERCLA in order to assess the ability of PRPs to fund or
otherwise finance a response action. Individual income tax returns, in contrast to
business tax returns, may not be "business information" within the meaning of 40 C-F.R.
2.20 1 (C) and thus may not be elicible for confidential treatment under Exemption 4.
Nonetheless, there is a privacy interest in such tax returns which is unlikely to be
counterbalanced by any public interest in their disclosure. This information is of the type
contemplated for protection under Exemptions 6 and 7(C).3
2. The Privacy Act
The Privacy Act protects information contained within a Privacy Act system of "records;
i.e., information about or pertaining to an individual which is maintained or retrieved by the
individual's name or other personal identifier (e. a., Social Security Number). A collection of
information which is not identifiable to an individual is not a record for Privacy Act purposes;
nor is information which contains an individual's name, but is not about or does not pertain to
him.
Although EPA is required to publish a notice of the existence and character of a Privacy
Act system of records in the Federal Register, information contained within a Privacy Act system
of records is subject to the restrictions of the Privacy Act regardless of whether the Agency has
complied with the requirement of publishing a Federal Register notice.
The Privacy Act prohibits disclosure of records covered by the Act (subject to civil and
criminal penalties) unless the records fall within one or more of twelve exceptions set
forth in the Act. One exception permits disclosure if the records are required to be
released under FOIA. Thus, if a Privacy Act record is required to be disclosed under
FOIA (i.e., is not exempt under FOIA), the Privacy Act will not preclude disclosure.
3 See, however, discussion of withholdability of CERCLA §104 information, below.
5
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WSG 105
However, if such a record is exempt under the FOIA, the Privacy Act will prohibit the.
Agency from releasing the record in its discretion. Accordingly, personal information in
law enforcement records which is exempt under FOIA exemptions 6 and 7(C) may not be
disclosed in the Agency's discretion.
The Agency is currently considering whether any civil enforcement records are of Privacy
Act systems of records. If in doubt concerning the Privacy Act status of a record, contact the
Office of General Counsel.
3. Confidential Business Information (Exemption 4)
FOIA Exemption 4 protects trade secrets and commercial or financial information that is
privileged or confidential. Generally, if information relates to a business or trade, it should be
examined to determine whether the information is confidential or whether the business asserts a
claim of confidentiality. By regulation, business information may not be disclosed unless the
Agency has ascertained that there is no claim of confidentiality applicable to the information, or a
final determination of nonconfidenitiality has already been made and the appropriate period
allowed for comment by the business has ended.
• If a FOIA request includes business information within its scope, the office responding to
the request must first ascertain whether a confidentiality claim has been asserted for the
information.
• If no confidentiality claim has been made but the information is of a type where the
submitter might be expected to object to its release, EPA must still contact the business to
ascertain whether the business wishes to assert a claim for the information, unless when
the information was requested EPA gave notice that the information was subject to
release if no confidentiality claim was asserted.
• If the information is claimed as confidential, the EPA office should follow the procedures
outlined in Chapter 8 of the FOIA manual.
Following is a list of types of information frequently claimed as confidential by the
submitting company. This list is not exhaustive, however, and the Agency must treat the claimed
information as confidential until a final confidentiality determination is made.
- Trade secret formulas, devices and identities of chemicals .
- identities of pesticide inerts
- The fact that a company is manufacturing, importing, processing, etc. a particular
chemical
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WSG 105
- Production volumes of chemicals, or amount stored at a company facility
Industrial process information
Any financial data regarding a company (e.g.,. assets, profits, taxes), obtained
from any source
- Contractor cost-structure and other contractor-supplied financial information such
as direct labor rates, indirect rates, proposals, fees
• If no confidentiality claim is asserted for a record, the Agency may not use Exemption 4
as grounds for withholding.
With some exceptions, the Agency deems commercial or financial information to be
entitled to Exemption 4 protection if 1) its disclosure is likely to cause substantial harm to the
competitive position of the submitter, 2) the information was voluntarily submitted to the Agency
and is of a type that the submitter would not customarily disclose to the public, or 3) information
is privileged.
Example of Settlement Documents In the course of settling claims, the Agency
frequently sends correspondence to, and receives correspondence from, private entities against
whom claims have been asserted. The private entity may claim its correspondence as
confidential. If so, the correspondence is likely to be eligible for confidential treatment under the
settlement privilege.4 Correspondence from the Agency to the private entity is not eligible for
protection under Exemption 4 (except insofar as the correspondence restates the private entity's
communications with EPA), but potentially is subject to Exemption 5 protection (see below).
Note that the Trade Secrets Act and some environmental statutes impose criminal liability for
unauthorized disclosure of confidential business information.
4. Statutory (Exemption 3)
Exemption of FOIA covers information specifically exempted from disclosure by another
Federal statute. The statute in question must leave no discretion as to the requirement that
information be withheld, or if must establish particular criteria for withholding or refer to
particular types of information to be withheld.
The most common Exemption 3 statute applicable to enforcement documents is Federal
Rules of Criminal Procedure, Rule 6(e) which prohibits disclosure of matters occurring before a
4 The Agency must first establish that the party has claimed the information as
confidential and follow the other appropriate procedures in 40 CFR part 2, subpart B.
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WSG 105
grand jury. Although Rule 6(e) is not technically a statute, it has been held to satisfy the "statute"
requirement of Exemption 3 because it was specially amended by Congress in 1977.
B. Discretionary Withholding
1. Presumption of Disclosure
Throughout the following summary of the discretionary exemptions most common to
enforcement documents - Exemptions 5 and 7 - the presumption of disclosure allows withholding
of documents only if, after careful consideration of the reasonably expected consequences of
disclosure hi each particular case, the Agency foresees that disclosure would be harmful to an
interest protected by that exemption.
2. Articuable Harm
In order to withhold enforcement-related documents not otherwise prohibited from
disclosure, the Agency must be able to identify and define the harm that could reasonably be
expected to result if requested information were released to the public.
3. FOIA Exemptions 5 and 7
Exemption 5 - Privileged Inter-Agency or Intra-Agency Memoranda. This
exemption allows the Agency to withhold from disclosure interagency or intra-agency
memoranda or other written communications which fall under pne or more of several privileges,
including:
• the deliberative process privilege;
• the attorney work-product privilege;
• the attorney-client privilege;
• the expert witness report privilege;
• the government commercial information privilege;
• the investigative report privilege; and
• the confidential informant privilege (see also Exemption (b)(7)(D)).
• Predecisional, Deliberative Documents. Only pre-decisional, deliberative documents may
be withheld. Predecisional, deliberative documents written prior to the agency's final
decision and usually contain recommendations or express opinions on that decision.
These documents typically discuss the pros and cons of the Agency's adoption of one
viewpoint or another. In determining whether a document is predecisional, consider the
document's language and its place hi the Agency's chain of decision making. Documents
written by a subordinate and transmitted to a superior are more likely to be predecisional
than those written by a person, with final decision making authority. Factual information
contained within a deliberative document must normally be released.
8
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WSG 105
The deliberative process privilege is intended to encourage frank and open discussion
within the government, to protect against premature disclosure of policies before they are
adopted, and to protect against public confusion should recommended actions be different
upon formal adoption by the government. Internal Agency comments on proposed
courses of action, pros and cons of various options, and similar discourse may be
withheld from from release under Exemption 5.
Example 1 The Agency has withheld from requestors copies of Requests for
Concurrence on Settlement, relying on the Deliberative Process Privilege.
Example 2 The Agency has withheld from requestors copies of comments on
draft or pre-decisional regulatory proposals, Agency enforcement initiatives, or
enforcement policy matters.
Settlement Documents Some courts have held that documents transmitted between the
government and third parties during settlement negotiations are not inter- or intra-agency
documents, but have indicated much sympathy for withholding such documents from
public disclosure for policy reasons. The Department of Justice has indicated that
settlement documents be withheld by agencies at the administrative level, particularly
where strong policy interests militating against disclosure are present. (See Exemption 4,
above, for settlement documents received from private entities.)
The Attorney Work-ProduceJPrivilege This privilege allows the withholding of
documents prepared by, or at the direction of, an attorney in anticipation of possible
litigation (which can include administrative proceedings). Litigation need not have
commenced but it must be reasonably contemplated. This means that a specific claim
must exist that is likely to lead to litigation. The privilege is still applicable after a legal
case has ended or even if it was never begun, as long as the documents were prepared in
reasonable contemplation of litigation.
Example The Agency generally withholds litigation referrals and other memos or
notes prepared by the case attorney which discuss evidenc§ against defendants in
enforcement actions and any weaknesses in the evidence, or possible defenses.
Exemption 7(A) may also apply to these documents.
The Attorney-Client Privilege. This privilege applies to confidential communications
between attorney and client. An attorney-client relationship is necessary to invoke this
privilege. Such a relationship exists for communications between an Agency attorney
and an Agency employee, The application of this privilege requires that the
communications between the parties be of a confidential nature. Unlike the attorney
work-product privilege, the availability of the attorney-client privilege is not limited to
the context of litigation. The privilege still applies when this information is disseminated
within the Agency to persons involved with the matter in question. However, unrestricted
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WSG 105
distribution within the Agency would preclude the Agency from claiming the privilege.
Communications between the Department of Justice attorneys and EPA counsel or EPA
program or technical staff are also covered by this privilege protection.
• The Government Commercial Information Privilege. A privilege is available to the
government for information it generates in the process leading up to the award of a
contract. An example of this type of information would be cost estimates prepared by the
government and used to evaluate the construction proposals of private contractors.
• The Expert Witness Report Privilege. Another privilege that is commonly invoked
allows the withholding of records generated by an expert witness.
• The Investigative Report Privilege. This privilege has been applied to protect witness
statements in Criminal Investigation Division and Inspector General investigations.
• The Confidential Statement Privilege. Statements obtained from confidential informants
such as statements given to the Inspector General by witnesses who have been granted
confidentiality, may be withheld.
Exemption 7 - Records or Information Compiled For Law Enforcement Purposes.
Exemption 7 applies to all records or information compiled for law enforcement purposes whose
release could reasonably be expected to cause the specified harm each sub-section is intended to
prevent. Exemption 7 provides that records or information compiled for law enforcement
purposes need not be disclosed under the following six instances.
1) Exemption 7f AV Interference with Enforcement Proceedings. Records or information
compiled for law enforcement purposes may be withheld where disclosure "could
reasonably be expected to interfere with enforcement proceedings"
Harm to the government's case in court by premature release of evidence or information,
or damage to the Agency's ability to conduct an investigation, constitutes interference
under this exemption. Damage to a related or similar enforcement proceeding also
constitutes interference. Exemption 7(A) can be invoked only as long as the enforcement
proceeding is in progress, pending or anticipated.
The Agency must be able to specifically articulate the kind of harm that would affect its
case. Some types of harm that fall under this exemption include premature disclosure of
the government's evidence and strategy or the focus of its investigation, and the
possibility that potential witnesses and sources of information would be inhibited.
Example 1 EPA typically uses contractor support at early stages of a site
investigation to determine the "potentially responsible parties" ("PRPs") that
might be liable for fire cleanup of the site, or, in the alternative for the
10
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WSG 105
reimbursement of EPA's costs, if EPA funds the cleanup. The contractor prepares
for EPA a "PRP Report" summarizing the results of its investigation. The Agency
often withholds this report under Exemption 7(A). Similarly, CERCLA
enforcement staff may compile and maintain information linking various entities
to sites being addressed through emergency response or remedial actions. The
Agency often withholds this information during the pendency of a CERCLA §
104(e) request to a PRP in order to prevent PRPs from using this information to
tailor their responses to the agency according to their estimation of the strength of
the enforcement case.5 As this example illustrates, Exemption 7(A) is extremely
time-sensitive: information which must be protected at one state of an
investigation may have few consequences at a later stage.
Example 2 The Agency may withhold the transcript of a deposition taken of and ~
informant pursuant to a CERCLA administrative subpoena. Exemptions 7(A) and
7(C) may be applicable, as well as 7(D) (where the informant asks to keep his
identity confidential). If the depositions are part of a confidential investigation,
and the Agency is still trying to build it's case against some PRPs, the Agency
may want to preclude the PRPs from having access to the informants and being
able to intimidate them into changing their testimony.6
Example 3 The Agency withheld an internal memorandum on enforcement
strategy for the Tulalip Landfill site. Disclosure of the document would reveal
sensitive information about the Agency's approach to the site, which could
interfere with subsequent enforcement actions or with access agreements to the
Superfund site.
2) Exemption 7(B): Deprive a Person of the Right to a Fair Trial. Records or information
compiled for law enforcement purposes may also be withheld if their disclosure "would
deprive a person of the right to a fair trial or an impartial adjudication." This exemption
applies mostly in criminal trials of individuals.
3) Exemption 7(C): Unwarranted Invasion of Personal Privacy. Records or information
compiled for law enforcement purposes may be withheld if disclosure "could reasonably
be expected to constitute an unwarranted invasion of personal privacy." The public
interests in the disclosure of a document must be balanced against the invasion of privacy
that would result from disclosure.
Courts have recognized the danger of damage to an individual's reputation simply because
or her name is mentioned in a record compiled for law enforcement purposes even though
5 See, however, discussion of withholdability of CERCLA §104 information, below.
6 See, however, discussion of withholdability of CERCLA §104 information, below.
11
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WSG 105
he or she is not charged. Such information should be released only where exceptional
interests weigh in favor of disclosure.
Exemption 7(C) is also used to protect the identities of Criminal Investigation Division
special agents and other law enforcement officials who are personally involved in
compiling records or information for law enforcement purposes, and to withhold the
names of informers who may not technically qualify as confidential sources under
Exemption 7(D).
Because the test for withholding personal information under Exemption 7(C) is less
stringent than that under Exemption 6, both exemptions should ordinarily be refined to
protect personal privacy in the law enforcement context.
4) Exemption 7(D): Disclose Identity of Confidential Source. The first prong of Exemption
-7(D) applies to civil law enforcement investigations and permits records and information
compiled for law enforcement purposes to be withheld if disclosure "would reveal the
identity of the source." The second prong of Exemption 7(D) applies to criminal law
enforcement matter and allows the withholding not only of the identity of the confidential
source, but also any information provided by the source. This allows withholding of
information provided by a source even if the information was obtainable by other means.
Example The Agency withholds the identity of persons interviewed during an
investigation to find potentially responsible parties at a Superfund site, because
the source may request anonymity, or may be subject to potential retaliation by
employers.7
5) Exemption 7(E): Reveal Techniques. Procedures or Guidelines. This exemption permits
the withholding of records or information compiled for law enforcement purposes that
"would disclose techniques and procedures for law enforcement investigations or
prosecution, or would disclose guidelines for law enforcement investigation or
prosecution if such disclosure could reasonably expected to risk circumvention of law."
Generally, the technique or procedure should not be known to the public. Those portions
of an internal agency enforcement manual or guidelines that would enable the
circumvention of the law should be withheld.
Example 1 The Agency received a FOIA request for all Agency information
relating to criteria used for selecting facilities for multimedia inspection. Among
the grounds available for withholding subject documents is Exemption (7E).
7 See, however, discussion of withholding of CERCLA §104 information, below.
12
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WSG 105
Example 2 The Agency withholds lists of target facilities for PCB compliance
inspections and lists of inspection categories showing the percentage distribution
of target number for each category.
6) Exemption 7(F): Endanger Life or Safety of Any Individual Under this exemption, any
records or information compiled for law enforcement purposes may be withheld if
disclosure "could reasonably be expected to endqnger the life or physical safety of any
individual".
C. Special Considerations in Criminal Enforcement Cases
The prosecution of criminal cases is governed by a strict set of rules, set forth in the
Federal Rules of Criminal Procedure. The scope of these rules extends beyond court procedures.
The conduct of those involved in a criminal matter is strictly governed from the very outset of a
criminal investigation. These rules are designed to protect the guaranteed constitutional rights of
a criminal defendant. As a result, virtually every aspect of a criminal case - from initiation to
closure - will be subject to challenge by the defense.
Therefore, in order to successfully investigate and prosecute environmental crimes, the
Agency must be able to control and monitor the conduct of its employees to protect against later
challenges by the defense that may compromise or even destroy a criminal case. Also, innocent
persons, cleared during investigation, may be harmed by premature statements by Agency
employees.
In a criminal case, the government has the burden to prove the crime(s) beyond a
reasonable doubt. This is the highest, most stringent burden of proof in the American legal
system.
In order to develop that proof in an environmental criminal case, the Agency routinely
relies on the assistance and expertise of many of its employees. Thus, Agency employees will
have access to information that is not otherwise available to the public. In a criminal case,
because of the government's heavy burden of proof, the confidentiality of such privileged
information must be carefully guarded.
In addition, the Criminal Investigation Division special agents rely on an element of
secrecy in conducting their investigations. Criminal cases are often supported by information
provided by employees of, and documents maintained by, a targeted company. If the fact of a
criminal investigation is prematurely disclosed, the criminal target will have the opportunity to
tamper with potential witnesses, destroy incriminating documents or otherwise conceal the
evidence of a crime, and may endanger potential witnesses.
13
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WSG105
With these special considerations applicable to criminal cases in mind, Congress carved
out an exclusion to the FOIA, which allows the Agency to treat records as not subject to the
FOIA requirements under the following, limited circumstances:
1) If the investigation or enforcement actions involve a possible violation of criminal
law; and
2) if there is reason to believe that the subject of the investigation is unaware of its
pendency; and
3) if the mere disclosure of the existence of the records could reasonably be expected
to interfere with enforcement proceedings.
In situations where it would appear to be appropriate to rely on this exclusion provision,
Agency employees must consult with the Office of the General Counsel, Information Law
attorneys, Finance and Operations Division, prior to responding to the request
It is also important to distinguish between the exclusion described here, and the situation
hi which the Agency refuses to confirm or deny the existence of records responsive to a FOIA
request (see Exemption 6 - "Glomar", above).
D. Disclosure of Data Collected Pursuant to CERCLA § 104, and CAA §114
CERCLA § 104(e)(7)(A) and the CAA provides that "Information obtained... under this
section... shall be available to the public" unless it is CBI. A May 7,1992 opinion issued by the
Office of General Counsel stated that the language in §104(e)(7)(A) precluded the assertion of
FOIA exemptions (other than Exemption 4) for information collected pursuant to §104(e). Upon
the reconsideration of the issue, in consultation with the Department of Justice, OGC withdrew
the 1992 opinion via a memorandum issued on September 11,1995, pending development of
further guidance. Additionally, Superfund legislation being considered by Congress containing
language which would expressly preserve FOIA privileges for information collected pursuant to
§104.
Similarly, CAA §114(c) provides that "any ... information obtained under [§114(a)] shall
be made available to the public upon a showing to the Administrator... that... information... if
made public, would divulge methods or processes entitled to protection as trade secrets."
OECA's practice regarding this section has been to allow the withholding of information from the
public upon a showing that the information is CBI. However, OECA's practice also to permit the
assertion of other FOIA exemptions for information collected pursuant to §114.
14
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WSG 105
E. Consultation and Approval Procedures
While the authority to issue an initial determination releasing information has been
delegated to the Division Director level in OECA and the Regions8 the OECA or regional
attorney assigned to the case must be consulted prior to the release of documents hi response to a
request for records pertaining to any ongoing enforcement matter. In cases that have been
referred to the Department of Justice (DOT), the DOJ attorney and/or the Assistant United States
Attorney (AUSA) assigned to the case should also be consulted.
The authority to withhold requested enforcement records lies with the Assistant
Administrator and his Office Directors. Each region has its own delegation of authority which
should be adhered to. The FOIA attorney in the Offices of Regional Counsel should concur on
all denials.
F. Resources
Additional information about the FOIA exemptions and their application to enforcement
related documents is found at 40 CFR Part 2 and the Agency's Freedom of Information Act
Manual (#1550,992 Edition).
An exhaustive study of the FOIA and Privacy Act, and related case law, is contained in
the two-volume publication entitled the Freedom of Information Act Guide and Privacy Act
Overview, and the Freedom of Information Case List, issued by the Department of Justice, Office
of Information and Privacy, and available through the U.S. Government Printing Office.
Questions concerning the releasability of information may be directed to the Office of
General Counsel, Finance and Operations Division, at (202) 260-5460.
8 Regions may have differing delegations of authority which should be confirmed by
those handling the FOIA request.
15
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG106
Date Signed: November 1996
ICR Laboratory Quality Control (QC) Users' Guide (manual and five disks) -
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
(manual only) 814/B-96-005
(disks only) 814/B-96-005a
,NTIS#:
(manual only) PB96-157227
(manual and disks) PB97-501241
NCEPI #:
(disks only) 814/B-96-005a
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 107
Date Signed: February 1997
Drinking Water State Revolving Fund Program Guidelines
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
816-R-97-005
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG108
Date Signed: April 1997
ICR Treatment Studies Data Collection Spreadsheets Users' Guide (manual and 4 disks)
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
815-B-97-002
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 109
Date Signed: June 11,1997
MEMORANDUM
SUBJECT: The Data Sharing Committee's Review of the Total Coliform Rule Data Needs and
Safe Drinking Water Information System (SDWIS/FED) Reporting Requirements
FROM: Cynthia C. Dougherty, Director
Office of Ground Water and Drinking Water
TO: Addressees
The Data Sharing Committee has completed its review of the data needs and reporting
requirements for the Total Coliform Rule (TCR). The committee's recommendation to not
change the current reporting requirements was reviewed by the Association of State Drinking
Water Administrators (ASDWA)/EPA Data Management Steering Committee, the SDWIS
Executive Steering Committee, and by all States and Regions. Both of these committees
concurred with the recommendation and no objections were raised by any States or Regions. I
also agree with the recommendation and am sending this memo to officially notify you of this
reaffirmation of the current reporting requirements for the TCR.
As a reminder of what is currently required to be reported to SDWIS/FED under the
TCR, I have attached the TCR chapter from the Consolidated Summary of State Reporting
Requirements for the Safe Drinking Water Information System (SDWIS), EPA812-B-95-001.
States that have any questions on these requirements or on how to report this information to
SDWIS/FED should contact their Regional SDWIS Coordinator.
Thank you to everyone who participated in this effort, especially those States and
Regions that served directly on the Data Sharing Committee. If you have any further questions
on this issue, please contact me at 202-260-5543, or Jan Auerbach at 202-260-5274. You may
also wish to contact Tom Poleck, Chair of the Data Sharing Committee, at 312-886-2407.
Attachment
Addressees: State Drinking Water Administrators
Regional Drinking Water Program Managers/Coordinators
Regional Drinking Water Enforcement Managers/Coordinators
cc: Data Sharing Committee
Data Sharing Committee Advisory Group
ASDWA/EPA Data Management Steering Committee
Robert Blanco, OGWDW
Jan Auerbach, OGWDW
Vanessa Leiby, ASDWA
1
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WSG 109
TOTAL COLIFORM RULE
BACKGROUND
The Total Coliform Rule (TCR) became effective on December 30,1990, and updated
bacteriological monitoring for PWSs. The number of samples to be collected and analyzed is
based on system size. The State may permit systems serving <1,000 persons to sample less
frequently than monthly if system uses protected ground water, has no history of total coliform
contamination, and sanitary survey shows system is free of sanitary defects.
Any samples that test positive for total coliform (TC+) must be analyzed for fecal coliform (FC)
or E. coli (i.e., must be speciated). In addition, repeat samples must be collected within 24 hours
• (longer with State permission). For systems collecting < 5 samples per month, monitoring the
next month increases to 5 samples per month following a positive result.
FRDS/SDWIS REPORTING REQUIREMENTS r -
A. State Decisions
None are required to be reported.
B. Violations
Under the TCR, a PWS could incur 2 types of MCL violations and 5 types of M/R
violations (as shown in TCR Table 1). TCR Table 2 lists the data elements that must be
reported for each TCR violation.
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WSG 109
TCR TABLE 1
C1105-TCR Violation Type Codes
Violation Type
MCL, Acute
MCL, Monthly
M/R, Major Routine
M/R, Minor Routine
M/R, Major Repeat
M/R, Minor Repeat
M/R, Sanitary
Survey
Description
FC+ or E. coli positive (EC+) repeat or TC+ or EC+ repeat
following a FC+ routine
For systems collecting:
> 40 samples - more than 5% are TC+
< 40 samples - > 1 sample TC+ (repeat or routine)
Note: Also applies to systems on quarterly and annual
monitoring schedules.
No samples collected for compliance period
Some but not all samples collected for compliance period
No follow-up samples collected after a TC+ sample or no
speciation
Some but not all follow-up samples collected or speciated
for compliance period
Fails to have a sanitary survey conducted at the required
frequency:
CWS: by 6/29/94 and a min. of lx/5 yrs, thereafter
NCWS: by 6/29/99 and a min. of lx/10 yrs, thereafter
Note: Only applies to PWSs collecting < 5 samples.
Code
21
22
23
24
25
26
28
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WSG 109
TCRTablel
Required Reporting Elements
FRDS Element
No./Name
CHOI:
VIO-ID
C1103:
VIO-
CONTAM
C1105:
VIO-TYPE
C1107:VIO-COMP-
PERIOD-BEGIN
DATE
C1109
VIO-COMP-PERIOD
-END DATE
Cllll:
VIO-COMP-PERIOD
-MONTHS
SDWIS Attributes
FEDERAL FISCAL_YEAR_NUMBER
VIOLATIONS
D GENERATED ID SOURCE_CODE
VIOLATIONS
STATE_ASGN_IDENTIFICATION_NUM
BER
VIOLATIONS
TFRCNTMN_CODE
VIOLATION
TFRVTYPE CODE
VIOLATION
COMPLIANCE_PERIOD_BEGIN_DATE
VIOLATION
COMPLIANCE_PERIOD_END_DATE
VIOLATION
Not converted; can be determined from
C1107andC1109
Definition
Code used
to identify
the
violation
Contain ina
nt ID for
the
violation
The type of
violation
Date
compliance
period
begins
Date
compliance
period
ends
Duration
of
compliance
period in
months
Code Values/
Reporting
Format
yynnnnn, where
yy = FedFYin
which state
became aware of
violation
nnnnn = assigned
by State or
generated by
FRDS/SDWIS
3100
Refer to TCR
Table 1
mmddyy
mrnddyy
3 digits, ranging
from 001-120,
depending on
violation type
Other
When the VIO-ID
is generated by
FRDS, the first
position contains
the letter "V."
Not reported for
sanitary survey
M/R("28")
FRDS will value
C1131
VIO-MAJOR-VIO
LATION-FLAG
for violations
"23" - "26." Also
see Note 1.
*
Optional, if Cllll
is reported
Optional, if C 1109
is reported. Also
see Note 2.
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WSG 109
Note 1: If multiple TCR M/R violations (i.e., types "23" - "26") are incurred by a PWS during the same
compliance period, the state is only required to report one, in the following order of importance:
1 st - "25", Major Repeat M/R
2nd - "23", Major Routine M/R
3rd - "26", Minor Repeat M/R
4th - "24", Minor Routine M/R
A sanitary survey ("28") violation should always be reported even if it occurs in the same compliance period as
the other TCR M/R violation types or MCL violation(s). Similarly, an MCL violation should always be reported,
and if both a monthly ("22") and acute MCL violation ("21") occur during the same compliance period, both
should be reported.
Note 2: a.) For violation types 21-26, CM 1 would =
"001" for monthly monitoring
"003" for quarterly monitoring
"012" for annual monitoring
b.) For violation type 28, Cl 111 would =
"042" for CWSs or "102" for NCWSs which did not have sanitary survey by 6/29/94 or
6/29/99, respectively (i.e., 42 or 102 months from TCR effective date of 1/1/91)
"060" for CWSs and "120" for NCWSs which did not have repeat sanitary survey within 5 or
10 years of last survey, respectively (or number of months representing frequency with which
states require sanitary surveys)
Note 3: A system is considered to have returned to compliance for a "28" violation when it begins
collecting 5 or more samples/month or has had a sanitary survey.
C. Public Notification
Any system that incurs a TCR violation is subject to public notification (PN)
requirements contained in § 141.32. Mandatory health effects language in
§§141.32(e)(l 1) or (12) must be included in PN materials when a system incurs a "22"
(monthly MCL) or "21" (acute MCL) violation, respectively. Failure to meet PN delivery
and content requirements, result hi a PN violation. Information for the data elements
listed hi TCR Table 2 must be reported for violations of §141.32 requirements.
Additionally, the following values must be specified: Cl 103 = 3100 and Cl 105 = 06.
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WSG 109
D. Enforcement Actions
Any formal enforcement actions taken to address a violation must be reported to
FRDS/SDWIS. EPA also encourages the reporting of informal enforcement responses.
Enforcement actions are reported in the C1200, ENFORCEMENT-DATA record. In
addition, enforcement actions must be linked to the violations which they address.
Enforcement linking is achieved in the C1280 record, ENF-VIOLATIONS. For more
detail on which enforcement actions must be reported to FRDS/SDWIS and the linking of
enforcement actions to violations, refer to the summary sheet, entitled, Reporting
Enforcement Information.
DOCUMENT SOURCES
Primary Source: Total Coliform Rule (TCR) Implementation Manual, Appendix D -
FRDS Reporting, March 1991
Secondary Sources:
Release 2.12 - Federal Reporting Data System (FRDS-II) Data Element Dictionary,
March 1994 (original release: EPA 812-B-93-003, January 1993)
June 1994 memorandum, entitled, "Requirement for Public Water System which Takes
Fewer than Five Total Coliform Samples per Month to Undergo a Sanitary Survey"
*Note: This memorandum can be found in this manual as Water Supply Guidance
Number 82.
FRDS to SDWIS/FED Data Conversion Mapping, May 1995 version.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG110
Date Signed: July 7,1997
MEMORANDUM
SUBJECT: Delegation of Authorities Under Section 1445 of the 1996 Safe Drinking Water
Act Amendments Regarding Issuance of Information Requests to Determine
Compliance with the Act
• ' -\».-
FROM: Brian J. Maas, Director
Water Enforcement Division
TO: Water Division Directors, Regions I - X
Enforcement Division Directors, Regions I, II, VI &VIII
Regional Counsels, Regions I - X
The 1996 amendments to the Safe Drinking Water Act (SOWA) include a provision for
information gathering which states:
(B) Every person who is subject to a national primary drinking water regulation under
section 1412 shall provide such information as the Administrator may reasonably require,
after consultation with the State in which such person is located if such State lias primary
enforcement responsibility for public water systems, on a case-by-case basis, to
determine whether such person has acted or is acting in compliance with this title.
The current delegation of information gathering authorities under SDWA section 1445 is
contained in Delegation 9-12. It is our opinion, with which the Office of General Counsel
(OGC) and the Office of Human Resources and Organizational Services has concurred, that the
current delegation 9-12 already includes the authorities in section 1445 of the 1996 amendments.
Therefore, the Regional Administrators are delegated authority to issue information requests
consistent with the new provision, and this authority may be redelegated.
If you have any questions regarding this delegation, please contact Ciannat Howett of my
staff at (202) 564-4031.
Attachment
cc: Drinking Water Branch Chiefs
PWS Enforcement Coordinators
PWS ORC Contacts
I Mei Chan, OHROS
Jim Drummond, OGC
Norte: Attachment could not be located. For more information, please contact the EPA staff
person mentioned in the document.
1
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WSG 111-120
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG111
Date Signed: July 29,1997
MEMORANDUM
SUBJECT: Regional Data Management Roles
FROM: Janet L. Auerbach, Chief
Information Management Branch
Implementation and Assistance Division, OGWDW
TO: . Regional Drinking Water and Data Management
Branch Chiefs
At the Regional Branch Chiefs meeting in Philadelphia in April, I mentioned a number of
roles for the regions with regard to support of SDWIS/LAN, SDWIS/FED, and the Data Sharing
Committee. The effectiveness of the regional role will determine the level of success of SDWIS.
This memo follows up on that discussion and seeks commitment from the regions regarding
support for SDWIS/FED and SDWIS/LAN.
SDWIS/FED
Attachment A to this memo is a list of SDWIS/FED coordinator functions. This list may
help you understand all that your coordinator does. It also provides a checklist to make sure that
all responsibilities are covered.
As discussed at the meeting, we believe that regions should be providing beginner level
SDWIS/FED training for regional and state staff. Attachment B is an agenda for a beginner level
training course. I raised the question at the meeting whether any region was willing to pay travel
costs to send its trainer to another region to conduct training, or send its staff to another region to
take training. If either of these options interests you, let me know and I can try to arrange some
match-making.
SDWIS/LAN
We plan to conduct an evaluation of SDWIS/LAN in the pilot states and regions this fall
and winter, make any needed software modifications next spring, and install SDWIS/LAN in
new states by next summer. Two states, West Virginia and Vermont, have applied for and
received approval to have SDWIS/LAN installed earlier in the fiscal year. We believe the
success of SDWIS/LAN will depend in part on participation by the regions. Attachment C lists
the roles of headquarters, regions, and states as we see them. Attachment D provides a more
detailed explanation of the roles identified for the regions. We estimate that these functions
would take about .5 FTE for each SDWIS/LAN state in the region.
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As I indicated in April, we will not be able to install SDWIS/LAN in any new state in
your region unless you are able to perform the lead roles identified in Attachment C and
explained in Attachment D. During the early part of FY 98, we are prepared to provide the
training necessary to prepare your staff to assume these responsibilities. Attachment E is a list of
state plans regarding SDWIS/LAN adoption as we know them today. Please let me know by
September 30 whether you believe you will be able to provide support to the candidate states in
your region. We will need your commitment before we can schedule any installations in your
states.
Regions I and 4 have states which have indicated interest but those regions have not yet
requested the SDWIS/LAN PC version to familiarize themselves with the software. Please let
Clint Lemmons of my staff (260-3612) know if you would like to receive a copy.
Data Quality
Regions have a major role to play in ensuring the quality of data being submitted to
SDWIS/FED. There are a number of activities underway this year, such as the development of a
Regional Quality Assurance Manual, to assist regions hi performing this function. Reporting
under the FY 1997 Management Agreement between the Office of Water and the regions
requires a narrative report for each state describing the quality of drinking water inventory and
compliance information in SDWIS/FED and how it is used by the state and EPA. The 1998
Agreement requires a report on the activities taken by the regions to improve data quality in each
state. The Data Quality Committee would like to receive information on each region's quality
assurance activities and the region's assessment of the quality of each state's data in
SDWIS/FED. Regional activities and initiatives will he evaluated for possible inclusion in the
manual or possible distribution to other regions as an example.
Data Sharing Committee
I am delighted to announce that Carol Amend, Enforcement Branch Chief in Region 3,
has agreed to chair the Data Sharing Committee, beginning October 1. Tom Poleck, Region 5,
has agreed to remain on the committee. Bill Davis, Region 6, has also been serving as a regional
member. Mark Rasso from Region 2 and Drew Bartlett from Region 4 have recently joined the
committee. Thank you to all.these members for their interest in this important project. This
committee will have a strong east/Midwest flavor!
Funding
The SDWIS/LAN and SDWIS/FED budget, combined, in FY 98 is $4 million. That
level is the same as the level in FY 97. However, it will seem like a cut because we had $2
million in FY 96 carryover to spend in FY 97. The FY 98 funding level is insufficient to carry
out all the activities we were planning to conduct. We are looking at a variety of funding options
for FY 98 and FY 99. We recognize that FY 98 budgets are already fairly well set. However, we
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are considering asking the states who are getting SDWIS/LAN installed for the first time in FY
98 to pay the $25K in contractor cost associated with installation and training in that state. For
FY 99, we are exploring broader options, such as asking SDWIS/LAN states to share the costs of
operating and maintaining that system. We will also need to explore options regarding cost-
sharing for regions which use SDWIS/LAN for non-primacy states or Indian lands. We will be
getting options papers out to you for review on these issues in the next few months.
Next Steps
By September 30, please let me know the answers to the following questions:
1) SDWIS/FED: Will the region conduct beginner level training?
2) SDWIS/LAN: Will the region provide the assistance discussed in Attachments
C and D for SDWIS/LAN states in their region?
Also, by September 30, provide to the Data Quality Committee information on regional
quality assurance activities and the region's assessment of state data quality.
cc: Bob Blanco
Water Division Directors, Regions 1-10
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Attachment A
REGIONAL SDWIS/FED COORDINATOR FUNCTIONS -
I. Quality Control/Quality Assurance
1. Performs periodic evaluations of SDWIS' data quality, identifying specific
deficiencies and/or data quality issues, recommending corrective actions to State.
2. Serves as the Regional SDWIS Resource Access Control Facility (RACF) System
Security Administrator.
3. Coordinates and reconciles national reporting data requirements, e.g., GPRA and
SNC/Exceptions Tracking data with Enforcement staff.
'4. Develops guidance documents, e.g., data processing, reporting and system use, for
Regional and State staffs.
II. Data Processing
1. Tracks the receipt and processing of States' quarterly reports.
2. Reviews and analyzes error reports, sending copies to the States, if appropriate.
Documents the nature and quantity of errors. Contacts the State to discuss the
reason for any data which were rejected and the actions required to correct the
data. These actions can include correction in the State's data system, if
appropriate.
3. Tracks the receipt and processing of corrected rejected data or corrects the rejects
in SDWIS. : '
4. Provides a summary of the quarter's processing results to Regional State Program
Managers and also to the States when appropriate.
III. State Implementation Oversight
1. " Conducts data verifications at least every three years, after implementation of new
rules, major modifications to the State's data system or whenever appropriate.
Provides written reports to the Region and the State. Follows up on deficiencies.
2. Participates in the states' midyear and end-of-year evaluations to include
identifying strengths as well as weaknesses and makes recommendations for
improvements.
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3. Coordinates implementation of Data Sharing Committee recommendations on dat
which must be reported to SDWIS/FED.
4. Negotiates annual State work plan commitments with State Grant Managers.
IV. Public Information
Retrieves and analyzes SDWIS data in response to Freedom of Information Requests,
studies, trend analyses, enforcement activities, special initiatives, GIS activities, routine
and periodic reports to Headquarters, or assists other staff members in these activities.
V. System Development/Oversight rSvstem Enhancements. etc.\
1. Participates in the evaluation and development of SDWIS.
2. Evaluates and makes recommendations for system enhancements.
VI. Regional SDWIS/FED Expert
1. Provides technical assistance to States in resolving reporting problems.
2. Represents the Region on national data management and/or SDWIS-related work
groups, conferences and conference calls.
3. Maintains SDWIS documentation manuals.
4. Disseminates and explains data management policy and procedures to Regional
staff and States.
5. Provides training and technical assistance to States and/or Regional staff on
revisions and/or modifications to SDWIS relating to data entry, data retrieval, and
reporting requirements for newly-developed regulations. Facilitates or conducts
periodic refresher and/or advanced SDWIS training.
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Attachment B
SDWIS/FED BASIC TRAINING
AGENDA
1. SDWIS/FED Database overview
2. Logging on to SDWIS/FED
3. File manipulation using ISPF and SDSF
4. UMAIL
5. Accessing and creating SDWIS/FED standard reports
6. Viewing and printing standard reports
7. Introduction to the Platinum Reporting Facility (PRF) for Ad Hoc reports
8. Copying and running an existing query/form
9. Printing the report from a PRF query
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Attachment C
SDWIS/LAN Regional Implementation Plan
Aprils, 1997
It has been understood that Headquarters would be responsible for funding and coordination of
all activities relating to the pilot. Once the pilot is completed and we begin to look at new states
adopting SDWIS/LAN, the sheer numbers involved would dilute headquarters' implementation
assistance capability to the point that success would be impossible. The success of SDWIS/LAN
after the pilot may well depend on the willingness of the Regional offices to perform most of the
duties of installation, training, and initial contact for post-installation.technical assistance for the
new states.
We propose that each Region establish a SDWIS/LAN team and designate at least.onepereon as
a SDWiS/LAN Coordinator. The lead person would not necessarily be the same person as the
SDWIS/FED Coordinator. SDWIS/LAN and SDWIS/FED are different data systems residing in
different environments. EPA Headquarters will provide the appropriate regional staff with
SDWIS/LAN training through a train-the-trainer course.
In this proposal, the EPA Regional Offices would have the lead or have a major role in
following SDWIS/LAN-related activities:
SDWIS/LAN Training (Shared with Headquarters)
Start-up Assistance
Initial Contact For Post-installation Technical Assistance
Regional Offices would be involved to a lesser degree with the following activities:
Marketing
SDWIS/LAN Installation
Upload to SDWIS/FED Assistance
Additionally, would have the option of involvement in the following activities:
Oracle DBA Support
EDI Start-up Assistance
EDI Implementation Support
Oracle Database Optimization
Novell NetWare Expertise/Support
Network Performance Improvements
Microsoft Access Expertise/Support
Microsoft Access Training
Data Communications
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Attachment D
SDWIS/LAN Training
EPA has committed to providing the initial installation and user training for any state which
adopts SDWIS/LAN. User training should be a joint effort between EPA headquarters and the
regional office. It is typically five days in duration and each should conduct one half of the daily
instruction. Regional participation in conducting the on-site SDWIS/LAN user training will
serve to familiarize the EPA regional staff members with the particular state's data needs and
keep them up-to-date on the SDWIS/LAN software itself. Regional involvement would also
help establish the regional office's support role in the region.
Start-up assistance
The process for adopting SDWIS/LAN requires a great deal of planning and coordination.
Regional offices should take the coordinating lead to assure that established checklists are
complete to promote a smooth transition to the new system. Since the regional offices have a
better understanding of their states' needs, it would be preferable for them to coordinate the
efforts needed to make SDWIS/LAN a success in their regions. The areas which need to be
coordinated are pre-installation activities, and post-installation activities including data
migration. Pre-installation activities involve assuring that states meet computer hardware and
software requirements. Regional offices should also take an active role in helping states convert
their legacy system data into the Oracle-based SDWIS/LAN tables. Post-installation activities
are those which states perform to bring the data system into implementation. States from five of
the ten EPA regional offices as well as two of the offices themselves have been involved in the
SDWIS/LAN pilot program and could significantly contribute toward its implementation in new
states.
Initial Contact For Post-installation Technical Assistance
EPA regional offices should serve as the initial point of contact for states in their respective
regions who adopt SDWIS/LAN. The regional office staff should be able to direct states'
inquiries to the appropriate person. Each EPA regional office should appoint at least one staff
member to serve as SDWIS/LAN Coordinator. This staff member would not necessarily be the
same person as the SDWIS/FED Coordinator since SDWIS/LAN and SDWIS/FED are
completely different data systems residing in different environments, and each requires a
different skill set. The SDWIS/LAN Coordinator and any supporting team members would need
to be adequately trained to recognize the nature of the caller's problem and either answer the
question or route their call to the appropriate person. This level of involvement will also serve to
keep the regional office aware of the status of SDWIS/LAN issues in their states.
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The following matrix lists the SDWIS/LAN-related activities and proposes that each be assigned
to the state, EPA Region, or EPA Headquarters, and the degree to which they would take the
lead. In some situations, it may be necessary for the state to secure a contract with an
independent outside company to perform certain tasks where expertise is not available in-house
or from the EPA Regional Office.
Activity
Marketing
Candidate Screening
SDWIS/LAN Installation
SDWTS/LAN Training
Start-up Assistance
Data Migration to
Populate SDWIS/LAN
Initial Contact For Post-
installation Technical
Assistance
Oracle DBA Support
Oracle DBA Training
Database Optimization
Novell NetWare
Expertise/Support
Microsoft Access
Expertise/Support
Microsoft Access
Training
Network Performance
Improvements
ODBC Driver Issues
EDI Start-up Assistance
EDI Implementation
Support
Data Communications
Upload to SDWIS/FED
Assistance
EPAHQ
Major
Major
Major
Joint with Region
Minor
Minor
Minor
Minor
Minor
EPA Region
Minor
Minor
Joint with HQ
Major
Major
Optional
Optional
Optional
Optional
Optional
Optional
Optional
Optional
Optional
Minor
State
Contract
Major
Major
Major
Major
Major
Major
Major
Major
Major
Contract
Major
Major
Major
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Attachment E
SDWIS/LAN
Customer Interest Summary
State/EPA Regional
STATE
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
REG
4
10
9
6
9
8
1
3
4
4
9
10
5
5
7
7
4
6
1
3
1
5
INTEREST
Low
Unknown
None
High, has PC version
Low, has PC version
Low, Can not use Oracle applications
High, has PC version
Moderate, has PC version
Low
Unknown
Moderate, has PC version
Low, Has PC version
Pilot State, also has PC version
Pilot State, also has PC version
Pilot State
None, has PC version
Unknown
Moderate, has PC version
Low
Unknown
Low, has PC version
Low, has PC version
10
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Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
5
4
7
8
7
9
1
2
6
2
4
8
5
6
10
3
1
4
8
4
6
8
1
3
10
3
5
Low, Previous Pilot State, has PC version, may
be frustrated with own system's development
Moderate, wants to see PC version
High, has PC version
High
Pilot State
Pilot State
Low, has PC version
Moderate, has PC version
Low, has PC version
Unknown, has PC version
High, has PC version
Pilot State
Low
Moderate
Unknown, has PC version
Low
Unknown
Unknown
Unknown
Pilot State
Low, has PC version
Moderate, has PC version
High, has PC version, compelling need
Pilot State
Unknown
High, has PC version, compelling need
Unknown
11
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Wyoming
EPA Region 1
EPA Region 2
EPA Region 3
EPA Region 4
EPA Region 5
EPA Region 6
EPA Region 7
EPA Region 8
EPA Region 9
EPA Region 10
8
High, has PC version, See EPA Region 8
Unknown
Moderate, DI for Virgin Is. & Puerto Rico
Moderate, DI for D.C. has PC version
Low
Low, has PC version
Pilot Region
Low, has PC version •
High, has PC version, see Wyoming
Low, has PC version
Pilot Region for PC version
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG112
Date Signed: August 1997
Dear Colleague:
I am pleased to transmit the guidelines for alternative monitoring (formerly known as
Permanent Monitoring Relief (PMR)), which the Environmental Protection Agency (EPA) has
prepared pursuant to the requirements of Section 1418 of the Safe Drinking Water Act (SDWA),
as amended in August 1996. States have the discretion to decide whether, or not to adopt these
guidelines. States that elect to offer alternative monitoring must meet the requirements of
Section 1453 of the SDWA to develop and obtain EPA approval of their source water assessment
programs, and to complete a source water assessment for the systems that will use alternative
monitoring. Guidance for states to use in meeting the source water assessment requirements has
also been issued pursuant to Section 1453 of the SDWA.
These alternative monitoring provisions were developed in conjunction with an effort to
revise the chemical monitoring regulations, which has been known as Chemical Monitoring
Reform. EPA expects to promulgate revisions to the chemical monitoring regulations in August,
1998. EPA plans to incorporate these alternative monitoring guidelines into the chemical
monitoring regulations, in order to consolidate the federal provisions for chemical monitoring in
a single, comprehensive regulation.
Before developing these provisions, EPA held three stakeholder meetings and then
formed an EPA/State work group to evaluate the issues raised by the stakeholders. EPA issued
these guidelines in draft form on July 3,1997, for public comment, and held public meetings in
Denver, Chicago, and Washington D.C. to explain the provisions and solicit comments. This
document reflects the results of that process with respect to the alternative monitoring guidelines.
We appreciate the efforts of each stakeholder, and hope to continue using a collaborative
process in developing other federal policies and guidelines. With the issuance of these
guidelines, the time for planning and action moves to the states. We encourage states to work
with their regional offices in designing their source water assessment programs and strategies for
adopting and implementing these alternative monitoring provisions.
Sincerely,
Robert Perciasepe
Assistant Administrator
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United States
Environmental Protection Office of Water EPA816-R-97-011
Agency 4606 August 1997
ALTERNATIVE MONITORING GUIDELINES
OVERVIEW
These guidelines for alternative monitoring, formerly referred to as Permanent
Monitoring Relief (PMR), are being issued pursuant to section 1418(b) of the Safe Drinking
Water Act (SDWA), which requires the Environmental Protection Agency (EPA) to issue
guidelines for states to follow in proposing alternative monitoring requirements for chemical
contaminants. Congress recognized that as a state gains a better understanding of the
contamination sources that may affect the quality of a drinking water supply, the state would be
in an appropriate position to tailor the monitoring requirements for the system while continuing
to provide effective public health protection. The SDWA, therefore, provides that a state may
allow a system to implement the alternative monitoring offered by these guidelines, if the state
has an approved source water assessment program, and has completed a source water assessment
for that system. The SDWA further requires EPA to issue guidance for states to use in meeting
these source water assessment requirements, and directs EPA to issue the source water
assessment guidance at the same time as these alternative monitoring guidelines. Accordingly,
the source water assessment guidance was issued on August 6,1997.
On July 3,1997, EPA published draft guidelines in the Federal Register [62 FR 36100] hi
conjunction with an Advance Notice of Proposed Rule Making (ANPRM) for revising the
federal chemical monitoring requirements (then referred to as Chemical Monitoring Reform).
The draft guidelines were included in that notice in order to consolidate all of the draft changes
to the federal provisions for chemical monitoring into a single document. These alternative
monitoring guidelines have been developed after considering timely public comments received
on the draft guidelines.
EPA mentioned in the July 3 notice that regulations might be needed in order to
implement fully the alternative monitoring guidelines. Pursuant to the statute, alternative
monitoring must assure compliance with applicable national primary drinking water regulations.
To permit states to implement monitoring provisions that differ from the current requirements,
EPA plans to propose alternative monitoring as regulations in conjunction with the proposal of
the CMR regulations. Until such time as the provisions for alternative monitoring have been
promulgated as regulations, these guidelines do not impose legally binding requirements on
EPA, states or the regulated community. In compliance with the SDWA Amendments of 1996,
they are intended to assist states hi developing source water assessment programs that will
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generate the information to enable States to offer alternative monitoring to water systems in
appropriate circumstances.. EPA expects to issue final regulations for CMR and alternative
monitoring in a single regulation for monitoring revision by August 6,1998. This time frame for
regulatory support of alternative monitoring should not pose a hardship for the states or public
water systems (PWSs). It will take some time for many states to comply with the statutory
pre-requisites concerning source water protection for granting alternative monitoring to its public
water systems.
Under Section 1418(b) of the SDWA, the alternative monitoring guidelines must ensure
that the public health will be protected from drinking water contamination, that a state program
will apply on a contaminant-by-contaminant basis and that a public water system must show the
state that the contaminant is not present in the drinking water supply or, if present, is reliably and
consistently below the maximum contaminant level. The guidelines must further require that if a
contaminant is detected at levels at or above the maximum contaminant level or is no longer
reliably or consistently below the maximum contaminant level, the system must either
demonstrate that the contamination source has been removed or that other action has been taken
to eliminate the contamination or test for the detected contaminant according to the applicable
national primary drinking water regulation.
The SDWA further provides that the alternative monitoring shall not apply to regulated
microbiological contaminants (or indicators thereof), disinfectants and disinfection by-products,
or corrosion by-products. The guidelines apply to the chemicals listed in the following table and
to nitrate, as described in the sections below.
CHRONIC CHEMICAL CONTAMINANTS
INORGANIC CHEMICALS (IQCs):
[1] Antimony, [2] Arsenic, [3] Asbestos, [4] Barium, [5] Beryllium, [6] Cadmium, [7]
Chromium, [8] Cyanide, [9] Fluoride, [10] Mercury, [11] Nickel, [12] Selenium, [13] Thallium
SYNTHETIC ORGANIC CHEMICALS (SOCsl:
[1] 2,4-D (Formula 40 Weeder 64); [2] 2,3,7, 8-TCDD (Dioxin); [3] 2,4,5-TP(Silvex); [4]
Alachlor (Lasso); [5] Atrazine; [6] Benzo[a]pyrene; [7] Carbofuran; [8] Chlordane; [9] Dalapon;
[10] Di(2-ethylhexyl)adipate; [11] Di(2- ethylhexyl)phthalate; [12] Dibromochloropropane
(DBCP); [13] Dinoseb; [14] Diquat; [15] Endothall; [16] Endrin; [17] Ethylene dibromide
(EDB); [18] Glyphosate; [19] Heptachlor epoxide; [20] Heptachlor, [21]
Hexachloro-cyclopentadiene; [22] Hexachlorobenzene; [23] Lindane; [24] Methoxychlor; [25]
Oxamyl (Vydate); [26] Pentachlorophenol; [27] Picloram; [28] Polychlorinated Biphenyls
(PCBs); [29] Simazine; [30] Toxaphene
VOLATILE ORGANIC CHEMICALS rVQCs):
[1] 1,1-Dichloroethylene; [2] 1,1,2-Trichloroethane; [3] 1,1,1-Trichloroethane; [4]
1,2,4-Trichlorobenzene; [5] 1,2-Dichloropropane; [6] 1,2-Dichloroethane; [7] Benzene; [8]
Carbon tetrachloride; [9] cis-l,2-Dichloroethylene; [10] Dichloromethane; [11] Ethylbenzene;
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[12] Monochlorobenzene; [13] o-Dichlorobenzene; [14] p-Dichlorobenzene; [15] Styrene; [16]
Tetrachloroethylene; [17] Toluene; [18] trans- 1,2-Dichloroethylene; [19] Trichloroethylene; [20]
Vinyl Chloride; [21] Xylenes
After weighing the statutory requirements and considering public comment, EPA is
providing states the option of offering three forms of alternative monitoring: monitoring
waivers, surrogate sampling and reduced nitrate monitoring. These forms are described in detail
below. For waivers and surrogate sampling, EPA considers 1/2 of the MCL the highest
concentration at which a contaminant may be judged to be reliably and consistently < MCL,
especially considering that five year renewable waivers could mean that the system would not be
required to sample for a 10 year period or longer. For nitrate, EPA considers 2 mg/L as the
threshold for determining that a system is reliably and consistently < MCL. Although 2 mg/L is
20% of the MCL, it was selected because nitrate has acute health effects and a greater safety
factor is appropriate to provide effective public health protection from drinking water
contamination.
A state with an approved source water assessment program may complete the source
water assessments for a specific contaminant and grant alternative monitoring for that
contaminant, even if the state has not yet completed assessments for the remaining
contaminants. Although the SDWA specifies that the monitoring program apply on a
contaminant by contaminant basis, states are not precluded from conducting area-wide
assessments covering many systems and may, therefore, grant alternative monitoring to all the
systems in the area-wide assessment consistent with the results of the assessment.
States are expected to incorporate the information gathered through the source water
assessments in making waiver decisions, in designating surrogate sampling points and in
conducting analyses to support reduced nitrate sampling. States are also expected to review
changes to the conditions on which these forms of alternative monitoring are based before
renewing them. An update to the source water assessment may provide this information. States
are, therefore, encouraged to integrate the activities required for decisions related to alternative
monitoring and the very similar activities supporting the source water assessment program to
make them complementary. .
SPECIFIC ALTERNATIVE MONITOJEUNG PROVISIONS & CRITERIA
States may offer alternative monitoring under Sections A and B for the sixty-four (64)
contaminants listed in the table above, and under Section C for nitrate.
SECTION A - SAMPLING WAITERS FOR CHRONIC CONTAMINANTS
(1) State Findings Required for Waivers: A state may grant a waiver allowing a system to forgo
sampling during a five year monitoring period, if the state, at a minimum, makes one of the
following determinations:
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(a) the sampling point is free of contamination and there is a high probability that it will
remain so during the term of the waiver. A state may not make this determination, if the
contaminant has been detected within the source -water review area of the sampling point
within the last five years; or
(b) the contaminant level will remain reliably and consistently below the MCL during the
sampling period based on a finding that:
(i) the natural occurrence levels are stable and the contaminant does not occur
because of human activity; or
(ii) all the sources of potential contamination within the source -water review area:
have been identified, brought under control, and will pose no increased or
additional risk of contamination to the source water withdrawal point during the
sampling period; and the contaminant levels have peaked based on the history of
sampling results and the duration of the contaminant in the environment; or
(in) the treatment at the sampling point is properly operated and maintained, and is
working reliably and effectively; and
(iv) the highest contaminant levels are < 1/2 MCL.
(2) General Considerations: In making waiver decisions the state should, at a minimum,
consider the following factors.
(a) the fate and transport of the contaminant;
(b) the patterns of contaminant use;
(c) the location of potential contamination sources within the source -water review
area',
(d) the hydrogeologic features within the source water review area;
(e) the integrity of the structures delivering source water to the sampling point;
(f) the results of all source water assessments that have been completed within the
source water review area;
(g) the efficacy of any source water protection measures that have been enacted, and;
(h) for waivers based on the contaminant remaining reliably and consistently below
the MCL for the sampling period, the relationship of the sampling results to the
MCL, the variability of the sampling results over time, and the trend of the
sampling results.
(3) System Responsibility: Each water system granted a sampling waiver under this paragraph
should notify the state within 30 days of the time it first learns of any change in any of the
conditions under which a waiver was granted.
(4) State Review of Waiver Determinations: The state should review its decision to grant or
renew a waiver, whenever it learns of a change in the circumstances upon which the waiver was
granted. The state may amend the terms of a waiver, or revoke a waiver at any time.
(5) Waiver Renewals: A state may renew a sampling waiver by making the same determination
it made to initially grant the waiver, after reviewing current assessments of the factors that are
subject to change during the term of the waiver, and that affect the finding(s) upon which the
waiver is based.
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(6) Waivers for Cyanide: Before granting a waiver for cyanide, the state should determine
whether cyanide is present in the system's source water.
SECTION B - SVRROGA TE SAMPLING POINTS
A state may allow a system, or several systems, to use the monitoring results from the
sampling point(s) designated by the state as surrogate point(s), if the state determines that the
source water serving the surrogate sampling points is drawn from the most vulnerable portion of
the same contiguous source -water.
(1) Infra-system Surrogate Sampling: For designating surrogate sampling points within one
system, the state should consider a sufficient record of the pertinent information below and the
results of the source water assessments that have been completed under section 1453 of the Safe
Drinking Water Act:
Xa) monitoring data demonstrating that the sampling results are < 1/2 MCL;
(b) well log or surface water hydrology data demonstrating that the points to be
included in the surrogate sampling point program draw from the same contiguous
source water; and
(c) an inventory of the potential contamination sources within the source water
review area affecting all the sampling points to be included in the surrogate
sampling point program.
The state should also require the system to periodically validate the results of the
surrogate sampling points. For example, where one sampling point among three hi a small
system has been designated as the surrogate point, the state might require the other two points to
rotate the sample every five years.
(2) Inter-system Surrogate Sampling: For designating surrogate sampling points among
systems, a state first needs to receive EPA approval of its criteria and procedures for .
implementing an Inter-system Surrogate Sampling Point Program, that meets the criteria of this
paragraph. Two or more systems may use the monitoring results from surrogate sampling points
designated by the state, based on a complete assessment of the contiguous source water that has
been approved by the state and that describes:
(a) the requirements for validation sampling (For example, where several sampling
points among dozens in several systems have been designated as the surrogate
points, the state might require the next most vulnerable tier of sampling points to
'round robin' the sample every five years. This could significantly reduce the
overall sampling burden.);
(b) the location of potential contamination sources that could affect any of the
community water systems or non-transient, non-community water systems
drawing from the contiguous source water,
(c) the hydrogeologic features of the contiguous source water, and
(d) the relationships among potential contamination sources, the hydrogeologic
features and the source water withdrawal points, with particular regard to their
relative locations.
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(3) Validation Sampling: Whenever the sampling results at a surrogate point are > 1/2 of the
MCL, the state should require the systems to conduct validation sampling at each of the points
represented by that surrogate point. Surrogate sampling should be discontinued for that sampling
point, and for any sampling points that it represents, if the contaminant is >l/2 MCL. The state
should then decide which sampling points to target for increased sampling, which, if any, to
default to once every five years, and which, if any, may be appropriate for a smaller surrogate
sampling arrangement.
(4) System Responsibility: Each system should notify the state within 30 days of the time it first
learns of any change in any of the conditions under which any surrogate sampling point has been
designated.
(5) State Review of Surrogate Sampling Point Designations: The state should review its
decision to designate any surrogate sampling point, whenever it learns of a change in the
circumstances upon which the point was designated.
SECTION C - REDUCED NITRATESAMPLING
States may reduce the nitrate monitoring frequency from annual to biennial for a
sampling point served exclusively by ground water.
(1) State Findings: States should allow this reduction in nitrate sampling only under the
following conditions:
(a) Maximum Allowed Concentration: Nitrate measured as N has not exceeded a
concentration equal to or greater than 2 milligrams per liter at any time during the past ten
years; and
(b) Integrity of Structures & Equipment: The state has determined that the design and
construction of the structures and equipment delivering water from the wellhead to the
distribution system fully comply with current state code for such structures and
equipment; and
(c) Freedom from Surface Water Intrusion: The state has determined that the ground
water serving the sampling point is not under the direct influence of surface water, and is
not susceptible to significant changes in contamination levels during the period for which
the sampling would be reduced e.g., not a shallow well, not in fractured bedrock; and
(d) State Determination: The state has determined that (a) nitrate sampling is not required
as a precursor to microbial or viral contamination, (b) land uses, or relevant land use
based conditions (such as the effective operation of septic systems) in the area affecting
the sampling point are unlikely to change in a way that would increase the risk of nitrate
contamination, and (c) any contamination at the sampling point is unlikely to exceed the
2 mg/1 during the reduced sampling period.
(2) Effect of Detection > 2 mg/l: If nitrate is detected at > 2 mg/1, measured as N, the system
would return to an annual sampling frequency under the state requirements adopted pursuant to
the national primary drinking water regulations; and
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(3) System Responsibility & State Review: Each system should notify the state within 30 days
of the time it learns of any change in the conditions under which the reduced sampling for nitrate
has been allowed, particularly of any change in land use practices. The state will review its
decision to reduce the sampling frequency, whenever it learns of a change in the circumstances
upon which its decision was based.
SECTION D - DEFINITIONS
(1) Contiguous source water means, for the purposes of these guidelines, a source or several
inter-connected sources of public drinking water:
(a) comprised of surface water, or ground water, or ground water under the direct
influence of surface water, or any combination thereof, that serves two or more source
water withdrawal points; and
(b) from within which contamination that can reach any one of the source water
withdrawal points, can also reach any of the other source water withdrawal points.
(2) Monitoring period means the period during which water systems are required under
federal regulations to take at least one sample.
(3) Source Water Review Area (SWRA) means the surface and subsurface area within which a
contaminant can reach the source water withdrawal point, or any point between it and the entry
point to the distribution system (e.g., an aqueduct), during the time between regularly scheduled
samples. The size and shape will vary depending upon several factors, including the sampling
period, the hydrogeologic features within the area, and particularly a specific contaminant's fate
and transport. Where systems use ground water, the SWRA could be the Source Water
Protection Area (SWPA) established under the Safe Drinking Water Act, where the SWPA is
based on a time of travel delineation consistent with the sampling period i.e., 5 years. For surface
water, the SWRA is the -watershed upstream of the source water withdrawal point.
(4) Surrogate sampling points mean the sampling point(s) within a group of sampling points:
within one water system e.g., under a Wellhead Protection Program, that meets the criteria for
m/ra-system surrogate sampling point designations; or within a group of water systems, that are
designated by the state as the.most vulnerable to contamination and, therefore, can be used to
represent all the sampling points within the group.
(5) Validation sampling means sampling at one or more points represented by surrogate
sampling points, in order to verify that the surrogate points are representative of those sampling
points.
STATE ADOPTION & EPA APPROVAL OF ALTERNATIVE MONITORING
The Act specifies that state alternative monitoring provisions will be treated as
"applicable" national primary drinking water regulations, which means they must be enforceable
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under both state and Federal law1. The Act defines an enforceable state requirement as a "state
program approved pursuant to this part2." In order to assure that the state alternative monitoring
provisions will be federally enforceable, EPA will review and approve the state program.
Therefore, any state adoption of alternative monitoring requirements must be at least as stringent
as the federal program and adhere to each of the following steps.
(1) State Program Description: The state will describe the information it will review, and its
procedures and decision criteria for issuing waivers under Section A, designating surrogate
sampling points under Section B, or allowing systems to sample biennially for nitrate under
Section C. At a minimum, the State Program Description should include the criteria under
Sections A - C (respectively) for each form of alternative monitoring that the state proposes to
offer, and specify that the state will retain a record of the most recent vulnerability determination
for each sampling point, including:
(a) those resulting hi a decision to grant a sampling waiver under Section A;
(b) those resulting in a decision to allow the use of infra-system surrogate sampling
points under Section B(l); and
(c) those resulting in the approval of source water assessments and the location of
geographically targeted sampling points based on those source water assessments
under Section B(2).
(2) Notice & Comment: The state should provide notice and opportunity for public comment on
the state program.
(3) Attorney General Certification: The Attorney General needs to certify hi writing that the
alternative state monitoring requirements were duly adopted under state law, are enforceable
under state law, and provide adequate authority to meet EPA's alternative monitoring guidelines.
(4) State source water assessment program: The state must obtain EPA approval of its source
water assessment program.
(5) EPA Review & Decision: Under section 1428(c)(l), a state's program submittal will be
reviewed in conformance with 40 CFR 142.10-. 12.
(6) EPA Review of State Determinations: A Regional Administrator may annul a state decision
to grant a waiver, to designate a surrogate sampling point, or to reduce nitrate sampling, under
the procedures specified in 40 CFR, Part 142.18.
(7) State Reporting: EPA will address state reporting requirements in the subsequent nllemaking
for Chemical Monitoring Reform, which will incorporate these guidelines.
1 See §1418(c)
2See§1414(i)(4).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Date Signed: August 1997
MEMORANDUM
SUBJECT: Requirement for State Administrative Penalty Authority Under the Safe Drinking-
Water Amendments of 1996
FROM: Robert J. Blanco, Director
Implementation and Assistance Division, OGWDW
Brian J. Maas, Director
Water Enforcement Division, OECA
TO: Water Division Directors
Regions I - X
Enforcement Division Directors
Regions I - X
Regional Counsels
RegionsI-X
One of the new provisions to the Safe Drinking Water Act Amendments of 1996 includes
an administrative penalty requirement for States. To obtain and/or retain primacy for the public
water system supervision (PWSS) program, section 1413(a)(6) requires that States have such
authority and reads as follows:
"(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."
A number of issues have arisen on the interpretation of this section, particularly as you
and your staffs have worked with your States to evaluate their existing authority or to draft
legislation which would provide them the requisite authority. EPA is currently working on
revising the primacy rule to include this new statutory requirement. However, Regions need not
and should not wait for regulatory revisions to begin working with your States on this issue. The
guidance attached to this memorandum sets out EPA's interpretation of this new provision and
responds to many of the questions which have been raised by staff members over the last few
months. The guidance also lays out the process EPA intends to follow in order to insure that
State primacy programs are updated as required.
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You must work with your States to ensure that their programs meet the new statutory
requirements. This includes verifying their existing authority by reviewing the State laws and/or
regulations, determining if the authority meets the new SDWA requirements, and, if the State
lacks authority or if the authority does not meet the new requirements, developing a plan with
your States to get the requisite authority. When verifying a State's existing penalty authority, it is
likely to be necessary to request from the State Attorney General an interpretation of the State
laws and/or regulations.
We will be discussing the status of your State programs with you over the next several
months. Should you have any questions on this guidance, please contact Betsy Devlin, Associate
Director of the Water Enforcement Division in OECA at (202) 564-4054 or Connie Bosma,
Chief, Regulatory Implementation Branch in OGWDW at (202) 260-5526.
Attachment
cc: ORC Water Branch Chiefs
ORC PWSS Contacts
Drinking Water Branch Chiefs
Drinking Water Enforcement Coordinators
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GUIDANCE ON THE REQUIREMENT
FOR STATE ADMINISTRATIVE PENALTY AUTHORITY -
IN SECTION 1413(a)(6) OF THE SDWA AMENDMENTS OF 1996
I. Background/New Statutory Provision
A. New Statutory Provision - Section 1413(aV6)
The Safe Drinking Water Act Amendments of 1996 added a new paragraph to the
primacy requirements. Section 1413(a)(6) requires that States have administrative Penalty
authority in order to obtain and/or retain primacy. The new paragraph reads as follows:
"(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."
B. Current Information on State Administrative Penalty Authorities
According to the most recent compilation on State administrative order and
administrative penalty authorities, of the 56 States and territories:
33 States/territories have some administrative penalty authority
21 States/territories do not have administrative penalty authority
2 Nonprimacy States/territories (Wyoming, District of Columbia)
Of the 21 States/territories which do not have administrative penalty authority, 18 have
AO authority; therefore, only 3 do not have any type of administrative authority.
From this compilation, it s not possible to tell if the administrative penalty authority of
the 33 States/territories which have the authority is sufficient to satisfy the requirements of the
SDWA amendments.
A list of States/territories in each of the categories listed above is contained in Appendix
1 to this guidance. Regions should verify that this list is accurate and call HQ (Betsy Devlin)
with updates to this list or an indication that the list is accurate. This task should be completed
by September 15,1997. Please note that this is not an analysis of State authority to determine
compliance with the new SDWA requirements; it is merely an indication of whether the State has
administrative penalty authority.
II. Issues
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A. Overview
The issues raised so far fall into two broad categories: interpretation of the new statutory
provision in 1413(a)(6) and implementation of that provision
A number of questions have been raised on the interpretation of this new provision:
(1) What does "in a maximum amount... that is not less than $1,000 per day per
violation" mean?
(2) What does "adequate to ensure compliance" mean?
(3) What does me provision that a State may establish a maximum limitation on the total
amount of administrative penalties which may be imposed on a public water system per
violation mean?
In addition, questions have been raised on the implementation of the provision how long
do States have to obtain the requisite authority, what process is envisioned for revising/approving
revisions to primacy programs, and what is EPA's official position towards States which cannot
or will not obtain the authority.
This guidance document set outs an interpretation of the statutory provisions and provides
guidance for the Regions on how to proceed in reviewing both existing State authorities and
proposed legislation where States need to obtain new authority.
B. Interpretation of Section 1413(aX6)
1. Important Parts to the New Provision
-To obtain or retain primacy for the PWSS program, a State must have authority for
administrative penalties, unless the constitution of the State prohibits the adoption of the
authority.
-Depending on the size of the population being served by the PWS, the penalty authority
must be "in a maximum amount" or "adequate to ensure compliance."
-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."
2. Points of Clarification
There are, two Points which need to be made clear, but on which there is no debate:
(a) Administrative Penalty authority means, a penalty that is:
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(1) assessed by an officer or agent of an administrative agency, i.e., a part of the
executive branch of the State government; and
(2) legally owing without a separate judicial action.
Of course, if a duly assessed administrative penalty is not paid, then a judicial action may
be needed to collect the penalty. This means that the State Attorney General can be asked to
bring an action for enforcement of a penalty order.
t
(b) Administrative penalty authority is required for primacy unless the State constitution
prohibits it; that is, prohibits an officer of an executive agency from assessing any penalty
or alternatively requires a judicial action for the assessment of all penalties. Most State
. constitutions do not have such a bar. If a State asserts that its constitution prohibits
administrative penalties, the Region must obtain a statement from the State Attorney
General affirming this interpretation and a copy of the relevant provision of the State
constitution.
3. Responses to Three Specific Questions Raised
(a) Question: What is EPA's interpretation of the requirement that States
have administrative penalty authority "in a maximum amount
- 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?"
The confusion in this provision revolves around the terms "maximum amount" that is
"not less than." There is, however, a sensible reading of this provision which is both consistent
with the statutory language and its legislative history. The report on Senate Bill (SB) 1316 says,
in explaining this provision, that States are to have the authority to assess administrative
penalties of at least $1,000 per day per violation for large systems. The language in the House
Bill and in the final version of the SDWA amendments is identical to that in SB 1316, and there
is no additional explanation of this language. Therefore, the explanation provided with SB 1316
is a helpful indicator of Congressional intent.
EPA therefore interprets this provision to require that States must have the authority to
impose a penally of at least $1,000 per day per violation for systems serving a population
greater than 10,000 individuals. However, States are not obligated to assess this minimum
amount for every penalty imposed on systems serving a population of more than 10,000
individuals.
The $1,000 per day per violation is a statutory minimum.(that is, States must be able to
assess at least that amount); if a State has the authority to assess only less than $ 1,000 per day
per violation, then the State law must be amended in order to retain primacy, unless the State
constitution prohibits this. Please note, however, that a State may have the authority to assess
'larger amounts of administrative penalties.
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A final note: The wording "per day per violation" is critical. 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.
Determining whether a State law conforms to the statutory requirement can be a
challenging task as many States will not use the same language as the SDWA. In these instances,
a statement from the State Attorney General and a penalty policy from the State are likely to
assist in making such a determination.
(b) Question: What does "adequate to ensure compliance" mean?
The SDWA amendments say that for "any other system," that is, one serving a population
of 10,000 individuals or less, the administrative penalty must be "adequate to ensure
compliance" as determined by the State.
This provision is designed to give the States flexibility in dealing with the smaller
systems. The provision in part recognizes that some of the smaller systems may have difficulty
complying with the requirements of the SDWA and the regulations and do 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 remembered that a good proportion 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.
Taking these factors into consideration, 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. States need to include in their primacy
approval packages an explanation of why their chosen level of administrative penalty authority is
appropriate to ensure compliance. The level of penalties for small systems can be the same as
that for the larger systems.
(c) Question: What does the provision 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 mean?
This provision means, in short, that a State may establish an administrative penalty cap,
similar to those imposed on EPA in Section 309 of the Clean Water Act. For example, Section
309(g)(2)(B) of the Clean Water Act states that "The amount of a class II civil penalty under
paragraph (1) may not exceed $10,000 per day for each day during which the violation continues;
except that the maximum amount of any class II civil penalty under this subparagraph shall not
exceed $125,000."
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There are two important points:
(a) States are not required to establish a cap. Many may elect to do so, but it is voluntary.
(b) If States establish a cap, the cap is not on the total administrative penalty which
may be imposed on the system; but on the total which may be imposed on the system
per violation." Thus, 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 P WS had, for
example, 3 maximum contaminant level violations which lasted a month each, 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, the
system could be assessed $90,000, if there were no cap. However, the State has
established a cap of $25,000 for each violation; therefore, the PWS could only be
assessed the maximum for each violation - $25,000 x 3 = $75,000).
C. Implementation
The issues on implementation of this provision revolve around when States are required
to have administrative penalty authority and the process EPA will use to review and approve
revisions to State primacy programs.
1. Effective Date
The amendments to the SDWA state that "except as otherwise specified in this Act or in
the amendments made by this Act, this Act and the amendments made by this Act shall take-,-
effect on the date of enactment of this Act." There is no other date specified in the amendments;
therefore, this provision was effective on the date of enactment, August 6,1996. However, it is
reasonable to grant States time to change laws/regulations to comply with the new requirements.
The question then arises of how long should States have to change their laws and
regulations. The current regulations for revising approved primacy programs (40 CFR 142.12),
provide that a State has eighteen months from the time a new federal regulation is promulgated to
submit a primacy revision application. The SDWA amendments extend this time period to two
years. While these regulations do not currently apply to the primacy revisions necessary to meet
the new statutory requirements, EPA believes that allowing a two year time period for adoption
of these changes by primacy States is appropriate. As a result, Regions should work with their
States to have them submit primacy revision packages for approval within two years. EPA
strongly encourages States not to wait for the deadline, but to be working now to obtain the
needed authority and/or submit the required materials as discussed in the following sections of
this document.
EPA is in the process of revising the primacy regulations in 40 CFR Part 142 to reflect
this new statutory requirement. Once this regulation is effective (hopefully some time in the fall
of 1997), then the process and timeframes provided in the regulations for primacy revision
approval (and program withdrawal) will apply to program revisions needed for the administrative
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penalty authority. Therefore, the remainder of this document deals with the process which EPA
intends to follow once the revised regulations are effective.
If or when it becomes clear that a State is not going to obtain needed authority or the State
is not acting in good faith to obtain the authority, EPA will seek to begin the formal primacy
withdrawal process. There are serious consequences if a State loses primacy, including the loss
of State Revolving Fund (SRF) monies.
w. Process
Regions must review State laws and regulations to determine whether the State has
administrative penalty authority which meets the requirements of the SDWA. This is very likely
to include requesting a State Attorney General (AG) to provide the Region with an interpretation
5 of the State's authority. The AG's statement will be needed particularly in cases where the State
laws or regulations use different language than the SDWA. In addition, Regions need to request
from the States their rationale for determining that the penalty authority for systems serving a
population of 10,000 individuals or less is "adequate to ensure compliance." Regions should also
request an explanation from the States on how they plan to use their penalty authority (that is, a
penalty policy). While this is not a requirement, we believe that it will be particularly useful in
evaluating State programs.
Regions should review existing State laws and regulations and coordinate one response to
Betsy Devlin by October 15,1997. By this date the Regions should determine into which of the
four categories listed below each State program falls:
(a) States Which Currently Have Administrative Penalty Authority Which Meets the
Statutory Requirements and is Part of the Approved Primacy Program; •
(b) States Which Currently Have Administrative Penalty Authority Which Meets the
Statutory Requirements but is Not Part of the Approved Primacy Program;
(c) States Which Currently Do Not Have Administrative Penalty Authority or Where
Some Changes to the Authorities Are Needed to Meet the New SDWA Requirements; or
(d) States Which Currently Do Not Have Administrative Penalty Authority and Where
the State Constitution Prohibits Such Authority.
Each of these situations requires slightly different procedures; however, in all cases,
before a Region makes a determination and informs a State that its laws and/or regulations, do or
do not meet SDWA requirements, the Regions must consult with Headquarters. This
consultation is necessary because of the need to insure consistency throughout the country.
Details on the process for consultation, including specific contacts in OGWDW, OECA, and
OGC will be forthcoming.
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(a) States Which Currently Have Administrative Penalty Authority Which Meets
the Statutory Requirements and Is Part of the Approved Primacy Program. ~
If, after reviewing State laws, regulations, and explanation of the chosen level of penalties
for the systems serving 10,000 individuals or less, an Attorney General's statement where needed,
and the State's penalty policy, the Region determines that the State administrative penalty
provisions meet the new statutory requirements and that these provisions have already been
approved either in an initial primacy approval package or in a program revision application, the
Region, after consultation with headquarters as noted above, should write a letter to the State
confirming this fact. The letter should also indicate when EPA approved the program. No
formal process under 40 CFR Part 142 is required to approve the program.
(b) States Which Currently Have Administrative Penalty Authority Which Meets
the Statutory Requirements but is Not Part of the Approved Primacy Program.
If the Region determines, based on its review of State laws, regulations, an explanation of
the chosen level of penalties for the systems serving 10,000 or fewer individuals, an Attorney
General's statement, and the State's penalty policy that the State administrative penalty provisions
meet the new SDWA requirements, but they have never been formally incorporated into the
primacy program, the Region and State should follow the process for program revisions in 40
CFR 142.12.
As noted above, Regions must consult with headquarters before determining that the
State administrative penalty authority meets the new SDWA requirements.
(c) States Which Currently Do Not Have Administrative Penalty Authority or
Where Some Changes to the Authorities Are Needed to Meet the New SDWA 9
Requirements.
When a Region determines that a State does not have adequate administrative penalty
authority, the Region should consult with HQ and then write a letter to the State primacy agency
informing them of the deficiency and offering assistance as appropriate to obtain the needed
authority. The Region should negotiate with the State an agreement on a schedule for obtaining
the authority and should closely monitor the State's progress.
Once the authority is in place, the Regions and States will use the procedures in 40 CFR
142.12 as noted above to formally revise the State primacy program. Regions should consult
with HQ as they are working with States to draft legislation to insure that the new legislation will
meet the statutory requirements.
If or when it becomes clear that the State will not adopt administrative penalty authority
which meets the new statutory requirements, the Region, with consultation of HQ, should initiate
the withdrawal process under. 40 CFR 142.17. Please remember that the initiation of the
withdrawal process is a letter to the State, to which the State has 30 days to respond. However.
EPAJntends to withdraw programs if States do not obtain the authority required bv the SDWA.
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(d) States Which Currently Do Not have Administrative Penalty Authority and
Where the State Constitution Prohibits Such Authority.
When a Region determines that a State does not have adequate administrative penalty
authority, the Region should consult with HQ and then write a letter to the State primacy agency
informing them of the deficiency and offering assistance as appropriate to obtain the needed
authority. If the State responds with the affirmation that the State constitution prohibits such
administrative penalties, the Region must request a copy of the relevant provision of the State
constitution as well as an Attorney General's statement confirming that interpretation.
The Region should then write a letter to the State saying that since the State constitution
prohibits administrative penalties, the State does not have to have that authority to retain
primacy.
We hope that this guidance is helpful to you in working on these issues. Additional
guidance will be issued on consultation with headquarters. Moreover, we will keep you
informed of the status of the revisions to the primacy regulation. Should you have any questions,
please do not hesitate to contact Connie Bosma at (202) 260-5526 or Betsy Devlin at (202) 564-
4054.
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Appendix I
SUMMARY OF INFORMATION ON STATE ADMINISTRATIVE
PENALTY ORDER AUTHORITIES
Page 1 of2
Overview
According to the most recent compilation on State administrative order and
administrative penalty authorities:
33 States/territories have some administrative penalty authority
21 States/territories do not have administrative penalty authority
2 Nonprimacy States/territories (Wyoming, District of Columbia)
Of the 21 States/territories which do not have administrative penalty authority, 18 have
AO authority; therefore, only 3 do not have any type of administrative authority.
From this compilation, it is not possible to tell if the administrative penalty authority of
the 33 States/territories is adequate to meet the statutory requirements.
States with Some Administrative Penalty Authority - 33
Alabama
Arizona
Arkansas
California
Connecticut
Florida
Georgia
Hawaii
Idaho
Illinois
Iowa
Kansas
Kentucky
Louisiana
Massachusetts
Mississippi
Montana
Nebraska
Nevada
New Jersey
New York
North Carolina
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
Tennessee
Vermont
Washington
Commonwealth/No. Mariana Islands
Puerto Rico
Guam
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Appendix
SUMMARY OF INFORMATION ON STATE ADMINISTRATIVE
PENALTY ORDER AUTHORITIES
Page 2 of2
States Without Administrative Penalty Authority but With Some Administrative Order
Authority -18
Alaska Ohio
Colorado South Dakota
Delaware Texas
Indiana Utah
Maine Virginia
Maryland West Virginia
Michigan Wisconsin
Minnesota American Samoa
North Dakota
New Mexico
States Without Administrative Order Authority - 3
Missouri Virgin Islands
New Hampshire
Nonprimacy Areas- 2
District of Columbia
Wyoming
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG114
Date Signed: August 1997
Small System Compliance Technology List for the Surface Water Treatment Rule
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
815-R-97-002
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG115
Date Signed: August 1997
State Method for Delineating Source Water Protection Areas for Surface Water Supplied
Sources of Drinking Water
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
816-R-97-008
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nation through the states. Interested organizations and individuals have a key role to play in
source water protection, and a unique opportunity to set a course for the future. I urge you to be
actively engaged as this guidance is implemented and to encourage and assist your .colleagues in
participating in partnership with the states and others.
Thank you for your commitment to make the new Safe Drinking Water Act a success.
Sincerely,
Bob Perciasepe
Assistant Administrator
Attachments
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG 116
Date Signed: August 5,1997
Dear Colleague:
I am pleased to transmit a copy of the final State Source Water Assessment and
Protection Programs Guidance which EPA has prepared pursuant to the requirements of sections
1453 and 1454 of the Safe Drinking Water Act (SDWA), as amended in August 1996. States
and EPA regions will be using this guidance as states develop Source Water Assessment
Programs over the next 18 months. With approval of their programs, states will be responsible
for completing source water assessments for all public water systems.
The guidance also addresses opportunities to go beyond the assessments and implement
source water protection activities and programs. Prevention is a major theme of the SDWA
amendments. It is the clear desire of Congress and the expectation of EPA that the required
source water assessments will lead to local source water protection programs that will help
prevent contamination of drinking water supplies. The SDWA amendments offer tools to help
develop these protection programs, including funding through the Drinking Water State
Revolving Fund. Through passage of the amendments, the President and Congress have
committed the nation to building a pollution prevention barrier to drinking water contamination.
The law challenges each of us to do our part in carrying out this commitment.
This guidance reflects the efforts of a wide array of stakeholders from states, local
governments, water providers, business and environmental and citizens groups, and other federal
agencies. Through a variety of forums people and organizations around the country took the
opportunity to participate directly in development of EPA guidance and policy. The formal
comment period on the guidance closed June 13,1997, and we received and considered over 100
public comments. A comment/response summary is attached for your information.
As we listened to stakeholders, a clear message emerged that states need flexibility to
tailor programs and manage their resources. The final guidance responds to this concern by
specifying what EPA believes state programs need to incorporate to meet statutory intent; but at
the same time it allows states to propose alternative solutions to meet the same intent. We
received an equally important message that feedback through broad public involvement should
guide state choices. Here, the guidance both responds to this concern and reflects statutory
requirements and intent by specifying a strong public involvement process for Source Water
Assessment Programs development.
We appreciate the efforts of each and every stakeholder. We hope that this open and
inclusive process serves as a model for how the Agency will do business in the future. Now,
with the release of this guidance, the opportunities for action move from Washington out into the
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EPA Response to Major Issues
FOR THE NATIONAL GUIDANCE ON STATE SOURCE WATER ASSESSMENT AND
PROTECTION PROGRAMS
Clarification of EPA's Source Water Assessment and Protection Programs Goal
Many commenters requested that EPA clearly state its goals for source water assessment
and protection programs. Many suggested that these goals be measurable and based on basline
data.
The statutorily defined goals for source water assessment and protection programs
(SWAPS) are to provide for the "protection and benefit of public water systems and for the
support of monitoring flexibility." These are the basic and most important review criteria for
state submittals. The President and the Congress view these assessments as activities that should
not be done for their own sake, but as activities leading to the protection of source waters and
providing the basis for meeting the Act's requirements, particularly those giving greater
flexibility to reduce costs and maintain the delivery of safe water to the public.
Indeed, in the House Commerce Committee Report language (House Report 104-632,
Part 1), it states that, "the Committee recognizes that source water protection can be cost-
effective strategy for ensuring safe drinking water supplies... To address source water protection,
the bill creates a new program in which states with primacy will conduct an assessment,
coordinated with existing information and programs, to determine the vulnerability of sources of
drinking water within state boundaries... designed to protect source water from threats identified
during the assessment." Furthermore, the Senate Committee report provides that, "the only
options typically available to community water systems finding contaminants in their water
supply have been treatment or the development of new water supplies... To remedy this problem,
the bill adds a new section to the Safe Drinking Water Act that provides a means other than
treatment for community water systems to address problems or emerging problems of
contamination," that is, petition programs and source water protection efforts.
EPA will measure whether states are meeting the assessment program goals by ensuring
that, states develop and implement assessment programs so that protection actions and/or
monitoring flexibility will result from the assessments. That is, EPA will work with states to do
the assessments not only efficiently but also in such a way that the information hi the
assessments accurately, albeit at differing levels of detail, permit management actions to reduce
contamination from the sources identified as significant threats to drinking water. EPA strongly
believes that states, with stakeholder involvement prior to and during the assessments, will be
able to achieve these goals through these assessments.
For protection, EPA has a goal that "by the year 2005,60 percent of the population
served by community water systems will receive their water from systems with source water
protection programs in place." To achieve this goal, EPA will build upon the collective efforts
accomplished so far under Safe Drinking Water Act programs (e.g. Wellhead Protection
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Program) and Clean Water Act Programs (e.g. Watershed Approach and Nonpoint Source
Program) and other agency initiatives (e.g. Comprehensive State Ground Water Protection
Programs as part of the Watershed Approach). Furthermore, EPA will use the many new tools
provided by the new SDWA Amendments of 1996, such as the new Drinking Water State
Revolving Fund. While not statutorily mandated, EPA firmly believes this goal is desirable and
achievable on a nationwide basis.
States may choose additional goals that provide further indicators of success. For
example, some states have baseline monitoring data on water quality and previous inventories of
contamination sources which could be used to measure drinking water quality or reductions in
contaminant sources or threats. EPA, however, will not require development of such baseline
data since there are not enough federal resources to develop this data and also accomplish the
congressionally mandated assessments. EPA encourages states, where they have readily
available baseline data for a source water protection area, to track such measurable results, if
feasible, given state resources and total resources available for assessments and protection
programs.
Source Water Assessments are Mandatory
Some commenters questioned whether source water assessments are, in fact, statutorily
mandated in the new SDWA Amendments.
The statute clearly mandates that states develop and implement state source water
assessment programs. Section 1453(a)(3) of the Act requires primacy states to submit source
water assessment programs to EPA for approval within 18 months after the Agency publishes
final guidance. Under section 1453(a)(l), EPA is required to issue guidance for "primacy states
to carry out directly or through delegation...a source water assessment program within the state's
boundaries." Every stage for an assessment program, as set out in sections 1453(a)(2) and (3),
contains specific requirements regarding content and time frame of a state's SWAP and is
explicitly mandatory ("shall"), making the assessment program as a whole mandatory for
primacy states. Congress clarified its intent in the House Commerce Committee Report (House
Report 104-632, 5) stating that "[t]he bill creates a new program under which states exerting [sic]
primacy must conduct an assessment of source water areas and, to the extent practical, identify
the origins of any contaminants within each delineated area" [emphasis added].
Clarification of What is Required for State Source Water Assessment Program Submittals
Some commenters wanted to know what requirements were absolute, with little or no
flexibility and which requirements were based on EPA's interpretation of the statute, therefore
allowing a state to provide alternative approaches from what the guidance specifies.
Many of the requirements for state submittals are explicitly required by sections 1428 and
1453 of the SDWA: advisory committee(s), public hearings, and other outreach efforts prior to
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submitting the program; delineation, inventories of significant sources of contamination and
determinations of susceptibility for all PWSs; and the policy and processes for how the state will
make assessments available to the public. In addition, the state SWAP is statutorily required "for
the protection and benefit of public water systems."
Many other elements of a state submittal, however, EPA believes are crucial to
demonstrate that the state program will meet the intent of the SDWA provision. For example,
EPA believes a state "needs to" include in its submittal a summary of the advice from the
advisory committee(s) regarding key program development questions. A state has the option of
demonstrating that it has an equivalent alternative to what EPA says a state "needs to" include. If
the state shows that it has an alternative for any EPA-specified requirement, the Agency will
approve that aspect of the submittal.
Public Participation Issues in the Development and Implementation of Source Water
Assessment Programs and Protection Programs
Many commenters addressed the issue of whether the citizens advisory committee and the
technical advisory committee could be combined, and whether a past or on-going committee or
other participation efforts are sufficient to meet the guidance's requirements. While some
commenters opposed a combined committee because of the potential for diluting a particular
interest, others cited examples of successful one-committee public participation. Some states,
noting that stakeholders have not been interested in serving on advisory committees in the past,
supported the idea that other public participation mechanisms could substitute for the committee.
Finally, many commenters objected to EPA's defining what sorts of groups should be included
on an advisory committee.
The statute at section 1428(b) says that states must involve the public to the maximum
extent practical, and must establish a Technical Advisory Committee and a Citizens Advisory
Committee. The final guidance permits a state to combine these committees into one committee
only if the state can demonstrate through committee structure, membership, and process that the
combined committee can provide for both the citizens and technical viewpoints specified by
Congress. In its submittal, the state will need to describe clearly the purpose of a technical focus
for public involvement and of a citizen's focus for public involvement. States must ensure that
their programs are reviewed from each perspective.
• The technical advisory committee provides recommendations or makes decisions
on technical advantages and/or disadvantages in terms of cost, data standards,
feasibility and sound science, as well as the likely effectiveness and feasibility of
approaches to assessments.
• The citizens advisory committee particularly provides the link to drinking water
consumers, local officials, and affected landowners in order to provide perspective
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on acceptable protection and the economic and political impacts of choices. The
purpose of the citizens advisory committee is to provide the policy and politics
side of the issues.
Involving the public to the "maximum extent possible," as required by the statute at
1428(b), includes offering adequate opportunity for membership on the advisory committee and
for participation in the planning activities. The guidance requires that states provide adequate
opportunities to various general categories of groups, such as public interest groups. One option
for a state to demonstrate that "adequate opportunity" was provided is to have offered financial
assistance for travel by members of the committee in need. EPA believes that encouraging
public involvement to the maximum extent possible needs to be demonstrated through wide and
effective advance notice of the involvement process; wide distribution/availability of decision
planning documents with adequate time to review; meaningful and substantial opportunities to
provide detailed comments representative of all interested sectors; and provision of direct,
genuine feedback from state program officials.
To the extent that a state has implemented these requirements for public participation
during development of its Wellhead Protection Program and/or Watershed Approach (or when
developing the state's ground water or surface water programs) and these programs included
delineations, source inventories, and susceptibility determinations similar to the requirements in
the final guidance, the state needs to undertake only those public participation requirements it has
not previously completed.
Differentiating Assessments to Complete Them for All PWSs Within the Allowed
Timeframe
Many commenters recommended that EPA permit states to do different types of
assessments for different types of Public Water Systems (PWSs). These commenters stated that
it would be very difficult and not benefit many PWSs to do the same type of assessment or level
of effort for each PWS.
EPA agrees, and therefore the guidance permits states the option of using different levels
of assessments (i.e., with different degrees of exactness for delineations and detail for inventories
and susceptibility determinations) for individual categories of PWSs. A state's submittal needs to
include an explanation of what approach was chosen, why the state chose that approach, and how
the state will complete all the assessments within the statutory time frame. When determining
the level of assessment (i.e., exactness/detail) for each category of system, states may consider,
separately or together:
• Previous assessment efforts
• Types and extent of threats
• Type (e.g., community, non-community) and size of system
• Objectives of the source water assessments
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Whatever approach the state chooses, EPA recommends that the state's first steps are to
review relevant available sources of existing data at the federal, state and local levels. This
would include gathering and analyzing the data to determine what additional information may be
collected and analyzed to complete individual assessments done under a wellhead protection
program or state watershed approach; vulnerability assessments; sanitary surveys; monitoring
programs; delineations and assessments done under a state management plan for pesticides; and
any other delineations and assessments done under the Clean Water Act or under state or local
statutes.
Significant Potential Sources of Contamination
Some commenters recommended that EPA specifically define what sources of
contamination needed to be hi inventories; others wanted to leave it to state discretion. In related
comments, some did and some did not want EPA to require states to specifically describe hi their
submittals which contaminant sources would be the focus of the inventory efforts.
The final guidance provides states with the discretion to determine what types of potential
sources will be considered "significant." However, states need to choose one or both of the
following two approaches to determine which types of potential sources are significant.
• Define a significant potential source of contamination as any facility or activity that
stores, uses, or produces, as a product or by-product, the contaminants of concern and has
a sufficient likelihood of releasing such contaminants to the environment at levels that
could contribute significantly to the concentration of these contaminants in the source
waters of the public water supply (s); or
• Describe how an initial susceptibility determination for the public water system(s) will
lead to identification of the types of significant potential sources that will be hi
inventoried.
Other commenters focused on how the inventories would be accomplished, and who
would actually do them (e.g., states, localities, or volunteers). EPA recognizes that completion
of these inventories take resources and recommends that, as one possibility, states set up
community volunteer programs under state or other appropriate quality supervision that can
accomplish lower-cost methods to locate potential sources of contamination. EPA recommends
credible groups within each source water protection area do the inventories such as the elderly,
through RSVP programs or younger people such as the Girl Scouts, Boy Scouts, or 4H club
members.
Names and Addresses
States, agricultural representatives, and water suppliers commented that any listing of
names and addresses of sources of contamination or identifying of sources on maps will reduce
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the effectiveness of protection actions, and therefore states should not have the option of listing
or mapping inventoried sources by name and address even if already in other public databases.
Some commenters also argued that listing in this way would be alarmist to the public, if released,
particularly if the inventoried sources were in compliance with federal, state and local laws.
Other commenters, however, strongly believe that listings of names and addresses of inventoried
sources should be mandated on states as part of every assessment.
The final guidance suggests that states list names and addresses of inventoried sources of
contamination if a state determines that: (1) it will enhance the effectiveness of source water
protection actions; and (2) it will not discourage voluntary implementation of protection
measures.
Some potential sources of contamination that are complying with federal, state and local
statutes may nonetheless be found to be significant and therefore need to be inventoried. That is,
a source's compliance with governmental laws does not necessarily mean that a PWS is not
susceptible to that source. Potential sources that could be in inventories include, but are not
limited to, Superfund sites, Toxics Release Inventory sites, National Pollution Discharge
Elimination System permittees, or Resource Conservation and Recovery Act sites, underground
storage tanks, non-point sources, and future sources.
Susceptibility Determinations
A few commenters have argued that the susceptibility determinations should not be a
required part of assessments, but if they are, EPA should explain exactly what level of detail is
expected of such determinations in an assessment.
The final guidance, based on clear congressional intent, requires a susceptibility
determination as part of each assessment because it is the way specified in the statute for a state
to make the inventory useful for source water protection programs, monitoring flexibility and
choosing among treatment options. The House Committee report (cited earlier) stipulated that
source water protection programs should be "designed to protect source water from threats
identified during the assessment." For all but the smallest source water protection areas, simply
identifying the numerous significant potential sources of contamination does not in itself
determine which of them may or may not present threats to drinking water or how to prioritize
their management in order to protect drinking water. Without a susceptibility determination,
these decisions are virtually impossible.
EPA will be publishing a technical document to assist the states in accomplishing
efficient and effective susceptibility determinations. This document will provide technical
guidance on conducting scientific analysis of: the hydrogeology and/or hydrology of the source
waters; contaminant fate and transport in source waters; and the effectiveness of existing
prevention and mitigation measures.
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Assessments for Ground Water Based Systems
Many commenters were concerned about how wellhead protection programs (WHPs)
integrate with the new SWAPs. For example, most states clearly wanted WHPs to be
grandfathered in when it came to performing delineations and assessments. On the other hand,
environmental organizations argued that EPA should require states go beyond typical wellhead
protection area (WHPA) delineation (i.e., only areas adjacent to the well or wellfield) to include
all recharge areas, even if not adjacent to the well, for all PWSs based on ground water.
The final guidance says that the state program submittal needs to indicate that the
delineation of source water protection areas for ground water based systems will be in
accordance with accepted methods under section 1428 of the SDWA (for Wellhead Protection
Programs) as described in EPA's publication titled "Guidelines for Delineation of Wellhead
Protection Areas," published in June, 1987. Where a state has an EPA-approved WHP Program,
a state may continue with the delineation approach established by that program. However,
whether the state has an approved program or not, it may choose to adopt the delineation
approach employed by another state's EPA-approved WHP program for the hydrogeologic
settings common in both states. EPA recommends that, in either case, a state consider modifying
the WHP Program approach, where necessary, to take advantage of the regulatory flexibility to
be offered to states and public water systems under such future rules as the Ground Water
Disinfection Rule.
There are situations for ground water systems where states need to delineate additional
recharge areas beyond the. traditional wellhead areas. In cases where a protection area
contiguous to the well or wellfield would alone be inadequate to provide for the protection and
benefit of the PWS, states need to delineate recharge areas that are not adjacent to or surrounding
the well.
EPA expects states to implement full WHPs under section 1428 of the SDWA, even
though the three steps of delineation, inventory, and susceptibility are basic requirements under
the new section 1453. Section 1428 was continued in SDWA 1996 and therefore all states are
still required to establish and implement full Wellhead Protection Programs. States that take the
Wellhead Protection Program set-aside will particularly be expected to make progress in
implementing voluntary or mandatory management measures as well as contingency plans and
policies for new wells.
Assessments for Surface Water Based Systems
Some commenters want to require delineations across state lines, so that consumers have
full disclosure of all information about the entire upstream watershed. Many states, however,
expressed concern about the practicality of coordinating multi-state efforts.
For systems using surface water, the final guidance follows the statute's requirement that
states delineate the entire watershed area (topographic boundary) within that state's borders,
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upstream of a PWS intake. Where water is diverted into this area from another watershed(s), the
watershed area(s) upstream of each diversion structure would also need to be delineated, again up
to the state's borders. _
To have an approvable submittal, the final guidance explains, each state needs to describe
in its submittal a plan to make the maximum practical effort to coordinate with neighboring
states on interstate source water areas. EPA will assist the states, if requested, through a
coordinating role at the regional level by facilitating discussions and providing technical
assistance.
Further, the final guidance notes that since it would often not be practical to inventory all
potential contamination sources in the watershed area, the state has the option of segmenting
each watershed area into discrete segments based on relative susceptibility. That is, a state can
choose to segment the delineated watershed area(s) into units (e.g., stream segments, buffer
zones, sub-watershed areas) for more cost-effective analysis. Based on the determination of what
types of sources are significant for each area, the state may inventory only those sources in each
area.
Information to be Made Available to the Public and Appropriate Time Frames for
Distribution
Several commenters from states, agriculture, and industry are opposed to requiring full
disclosure of all the data collected during the assessments. Some states are opposed to making
the assessments available quickly and want to wait to release the assessments only after the
results are analyzed and final for all of a state's source water protection areas. Other
commenters, however, encouraged mandating complete disclosure of all the data and analysis
within a given period after each assessment is complete.
For an approvable SWAP submittal, a state must describe how it will ensure that the
results of the assessments are made available to the public, either directly or through a delegated
entity, in an expeditious manner after the results are done. A state needs to make available all
information collected during each assessment, when requested. Furthermore, states need to
create maps as part of the results of the assessment, and those maps need to include the
delineated area and the sources of contamination described in the inventory. EPA recommends
that a state:
• Create a brief report understandable to the general public in an expeditious manner after
the assessment is finished.
• Make the report widely available via the Internet and other means.
• Provide widespread notification of availability (such as through bill stuffers) describing
in detail how the public can obtain a hard copy (using state rules for charging for copies).
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Permit the public to request a copy through postage-free return mail cards, a free call-in
number, and Internet posting.
Timetable for Implementation of Assessments
States have made the strong argument that completing assessments for all PWSs in 2
years will not permit them to do the quality assessments that are necessary to lead to effective
source water protection programs.
EPA agrees and therefore will consider extension requests at the time of initial submittals
of SWAPs. To be approvable, request to extend the deadline for completing the state's SWAP,
must be made based on:
• Consideration of the availability to the state of funds under the DWSRF under section
1452 of the Act. That is, based on its approved program, a state must show that
additional time is needed to complete the assessments based on an analysis of how much
DWSRF funding it is spending to do the assessments. For this reason. EPA encourages
states to determine how much it would cost to complete the assessments for their source
water protection areas, and then take up to the full 10 percent allowed from the FY 1997
funds.
• Consideration of other relevant factors such as the planned level of complexity of
assessments, or emergencies such as natural disasters.
For the initial program submittal, a state can provide a rationale for the eventual
extension of the timeframe and base its submitted timeframes and priorities on the extended
deadline. EPA will make a determination of the timeframe extension as part of the approval of
the state's program. As long as the extension requests provide cogent reasons using the permitted
rationale, EPA will grant the extension.
Sufficient Resources
Some commenters want EPA to recognize it is approving a program, not just a plan, and
argue that, therefore, EPA should not approve a state's program unless the state demonstrates in
its submittal that it really will commit sufficient resources, either using the DWSRF, other
federal resources, state resources, and possibly private resources to do the assessments for all
PWSs within the timeframe of its approved program. That is, EPA should judge whether the
state has committed to expend sufficient resources to do these assessments, and if not, disapprove
the program.
EPA agrees and the final guidance declares that states need to include in their submittals
an explanation of how the state will fund implementation of the assessments for all PWSs.
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Without this explanation, it will be difficult for EPA to know whether the states' description of
the rest of its program is practical and will actually result in protecting and benefitting PWSs.
Grandfathering Previous Assessments
There was great concern among commenters as to how past efforts, such as approved
Wellhead Protection Programs, Comprehensive State Ground Water Protection Programs
(CSGWPP), or local level source water protection programs are integrated with the new state
source water assessment and protection programs.
States should take full advantage of analyses done or data collected when they delineated
wellhead areas or assessed surface waters. One of the first steps in any SWAP should be a
review of relevant, available sources of existing data (including susceptibility determinations) at
the federal, state, and local levels. This would include gathering and analyzing the data to
determine what additional information may need to be collected and analyzed to complete
individual assessments and the state's assessment program. States need to determine whether
previously completed assessments meet the goals and requirements of the SWAP in regards to
delineation, contaminant source inventory, and susceptibility analysis. If a previously completed
assessment does not meet all the requirements of the SWAP, the state must refine the assessment
to include the missing elements.
Although previously completed assessments may be acceptable, states should take
advantage of the opportunity to update or expand previously completed assessments.
Protection and Petition Programs
Many commenters believe that the guidance needs to discuss all the options which are
available to states for prevention programs, with a focus on what is eligible for funding through
the Drinking Water State Revolving Fund (DWSRF). Other commenters felt that EPA should
focus more, if not exclusive, attention on the section 1454 Petition Program because of EPA's
statutory requirement to develop guidance for this program.
Incorporating the above concerns, the Petition Program is given a larger part of Chapter 3
in the final guidance with a new subsection describing its benefits and limitations. Nonetheless,
in addition to the discussion on Petition Programs, EPA provides a broad overview of the range
of options available to states to establish and support protection programs under the DWSRF,
particularly under section l452(g)(2)(B) of the DWSRF statutory provision.
States and local communities need to consider the net benefit of the section 1454 Petition
Program in comparison to either a modified petition process or a broader based source water
protection program. Limiting a state to voluntary incentive based programs could result in a
fragmentation of regulatory and non-regulatory programs whereas a more integrated program
could be more efficient. While the petition program may help communities move towards source
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water protection for chemical contaminants, the program is hot a prevention program in the
traditional sense. To make the petition program more useful, states may modify the Petition
Program to address some of these limitations. Such modified programs would be eligible for
DWSRF set-asides under sections 1452(g)(2)(B) and (k)(A)(ii).
A state's section 1454 Petition Program is subject to approval by EPA only if the state is
to receive funds to administer the program from funds specifically authorized under that section.
To date, EPA has not requested such funds and no funds have been mandated. Nonetheless,
guidance on the petition program may help states determine how best to structure a workable
vehicle for encouraging local partnerships.
Coordination Among State Agencies To Do the Assessments
. Many commenters argued that EPA needs to assure coordination at the state level in order
for the assessments to actually be accomplished. Many state commenters noted that the drinking
water programs cannot do the assessments alone because of the lack of access to the data and the
lack of staff resources.
The requirement for states to develop and implement SWAPs is not intended to
overburden state drinking water programs. EPA fully expects that state Clean Water Act and
agriculture agencies will work closely with the drinking water and ground water programs
regardless of the agencies in which they are located. If this coordination does not occur, it is
quite possible that the state may not be able to accomplish quality assessments within the
timeframe provided for in the Safe Drinking Water Act.
EPA believes that the cooperating agencies and programs should, as one of their first
steps in developing the state's source water assessment program, review available sources of
existing data at the federal, state, and local levels. Such information sources could include
delineation and assessments done under a state wellhead protection program or state watershed
approach; vulnerability assessments; sanitary surveys; monitoring programs; delineations and
assessments done under a state management plan for pesticides; and any other delineations and
assessments done under the Clean Water Act or under other state or local statutes. These
linkages can be important for. building a strong base of information for source water assessments,
as well as for initiating and evaluating mitigation, protection, and restoration strategies,
contingency planning, and emergency response.
Consideration of Future Rules on Monitoring, Ground Water Disinfection, Filtration and
Underground Injection When Establishing and Implementing Assessment Approaches
EPA suggests that states consider the possible impact of rules which will be promulgated
during the time that states are undertaking the source water assessments. Such rules include
alternative monitoring, the Ground Water Disinfection rule, the Enhanced Surface Water
Treatment rule and the Class V Underground Injection Control rule. EPA recognizes
commenters' concerns of the difficulty of predicting what will be required under these rules.
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One of the benefits of source water assessments is that they can provide the basis for.
regulatory flexibility under current or planned rules. EPA believes that the resulting savings can
greatly benefit many PWSs and the states; therefore, the state needs a process for updating
completed assessments. Therefore, EPA recommends that states include a plan to update the
assessments in the SWAP submittal. The SWAP, albeit mandated, is an opportunity to use
available resources, including the DWSRF set-aside, to do a complete and comprehensive
assessment for each PWS or group of PWSs. The more comprehensive and current an
assessment, the more it is likely to be useful in the future.
Coordination with Other EPA Programs and Other Federal Agencies' Environmental
Programs to Assist the States in Implementing Source Water Assessment and Protection
Program Approaches
Many commenters noted that federal agencies have data and information that could assist
states in implementing source water assessments. However, these commenters believe that this
data and information is very scattered across federal agencies and is not readily available.
EPA is committed to assisting the states do the assessments. We already have many
resources to assist the states. For example, a comprehensive listing of all Wellhead Protection
Technical Assistance Documents and how to secure them is described in a document titled
"Office of Ground Water and Drinking Water (OGWDW) Publications" (EPA 810-B-96-001).
Other documents and information on source water and wellhead protection are available at
OGWDWs Internet homepage found at [http://www.epa.gov/OGWDW]. Another compendium
now available on the Internet [http://www.epa.gov/owow/watershed/tools/] is titled "Watershed
Tools Directory: A Collection of Watershed Tools" (EPA 841-B-95-005). These documents are
available by calling the Safe Drinking Water Hotline at (800) 426-4791.
There are several forthcoming documents on delineation methods such as "State Source
Water Protection Area Delineation Methods For Surface Water Drinking Water Supplies,"
"Delineation of Source Water Protection Areas: An Integrated Approach for Ground and Surface
Waters," "Case Studies For the Conjunctive Delineation of Ground-Water/Surface-Water Source
Water Protection Areas," and a "Compendium of Wellhead Protection Area Delineation
Documents."
In addition, over the next 2 years, EPA will be sponsoring with other organizations,
source water assessment/protection conferences/meetings. One meeting in 1997 will be a
conference with the National Governors' Association and five other state executive branch
organizations. Another, tentatively scheduled for the spring of 1998, there will be a conference
titled, "Source Water Quality and Protection: Delineation, Monitoring and Effectiveness."
Furthermore, EPA's data management program for ambient water quality is centered on
EPA's STOrage and RETrieval system (STORET). This database contains decades of raw
surface and ground water data. STORET is currently being modernized to more effectively
handle the complex needs of the nation's evolving monitoring programs with the help of the
National Water Quality Monitoring Council, a consortium of public (including EPA) and private
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monitoring agencies. In addition, the National Water Quality Inventory Report to Congress (the
"305(b)" Report) contains state assessments as to whether a particular water body meets its
designated use as drinking water. For more information visit EPA's homepage . -
[http://www.epa.gov/owow/monitoring/].
EPA will continue its work with the states to produce comprehensive, multi-year
monitoring strategies that can serve as a base for source water assessment programs, and at
minimum may be closely linked with monitoring and assessment of specific source waters.
Guidelines for the 1998 305(b) report calls for states to include plans of how they will achieve
comprehensive monitoring coverage of their waters, including assessment for drinking water
designated use where applicable.
EPA is also working to strengthen state geo-referencing capabilities to better track
monitoring information for mapping and Geographic Information System (GIS) applications.
GIS tools, including the Reach File 3 system that assigns unique locational identifiers to the
waters of the U.S., will be valuable in source water assessments.
There are extensive databases at other federal agencies, such as through the Department
of Interior (e.g. United States Geological Survey) and the Department of Agriculture. EPA plans
to publish additional guidance describing how states can better access EPA's as well as other
Federal agency's databases to assist with assessment and protection programs.
State Source Water Assessment and Protection Programs Guidance
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
816-R-97-009
NCEPI:
816/R-97-009
15
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG117
Date Signed: August 5,1997
MEMORANDUM
SUBJECT: Guidance for Future State Ground Water Protection Grants
FROM: Robert Perciasepe
Assistant Administrator
TO: Regional Water Division Directors
Regional Ground Water and Drinking Water Representatives, Regions I - X
Purpose
Section 1429 of the Safe Drinking Water Act Amendments (SD WA) of 1996 authorizes
the Administrator to make grants to states to develop and implement programs to ensure the
coordinated and comprehensive protection of ground water resources within the state. While
Congress has not yet appropriated funds for these grants, the purpose of this memorandum is to
fulfill the Environmental Protection Agency's (EPA) statutory requirement to provide guidance
to identify the key elements of state ground water protection programs and to establish grant
application procedures should funds become available in the future.
Key Elements of State Ground Water Protection Programs
It is EPA's understanding that the type of state program outlined and intended by the new
section 1429 is described in the Agency's 1992 Final Comprehensive State Ground Water
Protection Program (CSGWPP) Guidance document (EPA 100-R-93-001). Indeed, the Senate
Committee on Environment and Public Works Report (Report 104-169, November 7,1995)
states that: "The new ground water grant program may be used to support states implementing
the CSGWPPs and will provide a financial incentive for other states to join the program." The
1992 guidance document encourages states to develop and implement CSGWPPs, as an integral
part of watershed protection. In that guidance, EPA identifies the six strategic activities which
are the key elements of a CSGWPP. They are: (1) establishing a state ground water protection
goal; (2) establishing priorities to direct all relevant programs and activities in the state to most
efficiently and effectively achieve the state ground water protection goal; (3) defining authorities
and responsibilities across relevant programs state-wide for addressing established state ground
water priorities; (4) implementing efforts to accomplish the state ground water protection goal
consistent with the state priorities and schedules; (5) coordinating information collection and
management; and (6) improving public education and participation hi ground water protection to
support the state ground water goal. Furthermore, EPA recommends that states integrate the
development and implementation of CSGWPPs and state source water assessment and protection
programs as set forth in the Agency's August 1997 State Source Water Assessment and
Protection Programs Guidance.
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Grant Application Procedures
Provided funding becomes available, states are eligible and may apply to receive a
ground water protection grant under section 1429 of SDWA to develop or implement programs
to ensure the coordinated and comprehensive protection of ground water resources within the
state. A grant made under section 1429 must be consistent with the procedures set forth at 40
CFR Part 31. A state may apply for a grant under section 1429 whether or not it has an EPA-
endorsed CSGWPP. If a state has an EPA endorsed core CSGWPP, then the state should submit
a grant workplan that is consistent with its multi-year program agreement which describes how
the state will further develop its core program to achieve a fully-integrating CSGWPP.
If a state does not have an EPA-endorsed CSGWPP, then it should submit a grant
workplan which describes the activities it will undertake with the section 1429 grant to develop
its core CSGWPP. These states may use a grant to develop a core CSGWPP pursuant either to
EPA's 1992 guidance or to a supplemental guidance to be issued in the fall of 1997. The
supplemental guidance will require less information from the state than is currently required
under the 1992 guidance. While it is anticipated that the new guidance will allow a state to
submit a simplified description of its CSGWPP, EPA fully expects the state to develop a
program consistent with all of the adequacy criteria set forth in the 1992 guidance.
If funds are appropriated for section 1429 ground water grants, EPA will produce
supplemental guidance which will describe:
• the method for allocating grant funds and the actual allocations among the states;
• the specific process and criteria for EPA approval of grant applications;
• the substance and process of state proposals for innovative prevention programs for
ground water contamination; and
• state reporting requirements.
CSGWPPs should Continue
Since publication of the Final Comprehensive State Ground Water Protection Program
Guidance in late 1992, EPA has been encouraging states, on a voluntary basis, to develop and
implement CSGWPPs. Seven states have EPA-endorsed core CSGWPPs to date (Alabama,
Connecticut, Illinois, Massachusetts, New Hampshire, Oklahoma, and Wisconsin). In addition,
twelve others have begun the endorsement process.
CSGWPPs are designed to: focus source control programs on preventing contamination
of higher priority ground water; facilitate coordination among the many intrastate programs that
protect ground water; and build a comprehensive approach to protection of ground water that
includes all stakeholders. In addition, CSGWPPs strengthen state watershed approaches by
providing an essential linkage between the state's ground water and surface water protection
programs. While federal funding is not currently available for ground water program grants
under the SDWA, for the above reasons, EPA still encourages states to submit and implement
CSGWPPs.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- WSG118
Date Signed: March 13,1998
MEMORANDUM
SUBJECT: Submetering Water Systems
FROM: Cynthia C. Dougherty, Director
Office of Ground Water and Drinking Water
TO: Water Division Directors
Regions I - X
Drinking Water/Ground Water Representatives
Regions I - X
There have been numerous requests for guidance on whether an apartment complex or
other similar residential communities (e.g. subdivisions and mobile home parks) which receives
water from a public water system (PWS) through a master meter and then resells it to the
residents qualities as a PWS. It has long been and remains the Environmental Protection
Agency's (EPA) position that apartment complexes and similar residential communities that sell
water to their tenants constitute PWSs and are subject to the Safe Drinking Water Act (SDWA)
regulations. However, EPA also recognizes that these PWSs may not require as stringent
monitoring as PWSs which do not receive their water from another PWS, and thus States have
the flexibility to modify the monitoring requirements for these apartment complexes or similar
residential communities.
On March 31,1997, in response to the above concerns, EPA held a meeting with several
stakeholders to discuss the regulatory provisions and the guidance that had already been issued
on these subjects. After this meeting, we received a few requests for more clarification to which
we responded by individual letters. To make sure that everyone understands the Agency's
position and to alleviate any confusion, we have incorporated the substance of our responses into
this memorandum. Please share this information with your respective States.
Statutory Requirements
Under Section 1411 of the SDWA, a PWS is subject to regulation unless it is a system
which meets all of the following four criteria:
(1) consists only of distribution and storage facilities (and does not have any collection
and treatment facilities);
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(2) obtains all of its water from, but is not owned or operated by, a public water system to
which the regulations apply;
(3) does not sell water to any person; and
(4) is not a carrier which conveys passengers in interstate commerce.
Assuming that apartment complexes and other similar residential communities meet the
criteria enumerated in (1), (2), arid (4), the issue is whether or not submetering of water to tenants
constitutes selling water within the context of the SDWA.
Interpretation of to "Sell" ' «•>
We believe that to "sell" should be given broad meaning under the SDWA. Construing
the statute this way is consistent with the purpose of the SDWA which is to assure that the water
supply systems that serve the public meet minimum national standards for protection of public
health to the maximum extent feasible. (House Report No. 93-1185). The House Report further
says, in explaining this provision, that Congress intends the primary drinking water regulations
to apply to housing developments, motels, restaurants, trailer parks, and other business serving
the public if the business in question maintains its own well or water supply and sells water.
A distributor of water for human consumption "sells" water within the meaning of the Act
if it charges consumers for the water as a separate item or bills separately for the water it
provides. (House Report No. 93-1185). Conversely, if the entity includes the charges for water
in the rental fee, then it is not selling water within the context of the Act. It is irrelevant whether
water is sold for a profit or not, or whether the distributor is a public or private entity. Thus, it is
appropriate to interpret to "sell" to include submetering.
If an apartment building or similar residential community that submeters wants to avoid
PWS classification, it would either need to remove the complex's master meter and allow the
local water utility to bill the residents directly, or include water usage as part of the monthly rent
or fees.
Monitoring Flexibility of "Consecutive" Water Systems
While an apartment complex that submeters is considered a PWS and thus subject to the
requirements under the SDWA, it nonetheless may be afforded certain monitoring modifications
if it is considered a "consecutive" water system. "Consecutive" water systems are water systems
that purchase water from another public water system. Under federal regulations at 40 CFR
141.29, States have the flexibility to modify the monitoring requirements to the extent that the
interconnection of the systems justifies treating them as a single system. This flexibility allows
States considerable discretion to avoid unnecessary compliance activities for "consecutive" water
systems consistent with the public health objectives of the Act. Because we support the practice
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of submetering to encourage water conservation and to provide an equitable method of
distributing costs, we believe that it is appropriate for States to use this flexibility consistent with
their assessment of the need for these "consecutive" systems to conduct additional monitoring to
protect the public health of their customers.
If you have any question concerning this guidance, please call Jennifer Melch at (202)
260-7035.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG119
Date Signed: April 10,1998
MEMORANDUM
SUBJECT: . Issuance of Final Supplemental Environmental Projects Policy
FROM: Steven A. Herman
Assistant Administrator
TO: Regional Administrators
I am pleased to issue the final Supplemental Environmental Projects (SEP) Policy, the
product of almost three years of experience implementing and fine-tuning the 1995 Interim
Revised SEP Policy. It is also the product of the cooperative effort of the SEP Workgroup,
comprised of representatives of the Regions, various OECA offices, OGC and DOJ. This Policy
is effective May 1,1998 and supersedes the Interim SEP Policy.
Most of the changes made to the Interim SEP Policy are clarifications to the existing
language. There are no radical changes and the basic structure and operation of the SEP Policy
remains the same. The major changes to the SEP Policy include:
1. Community Input. The final SEP Policy contains a new section to encourage the
use of community input in developing projects in appropriate cases and there is a
new penalty mitigation factor for community input. We are preparing a public
pamphlet that explains the Policy in simple terms to facilitate implementation of
this new section.
2. Categories of Acceptable Projects. The categories of acceptable projects have
remained largely the same, with some clarifications and a few substantive
changes. There is now a new "other" category under which worthwhile projects
that do not fit within any of the defined categories, but are otherwise consistent
with all other provisions of the SEP Policy, may qualify as SEPs with advance
OECA approval. The site assessment subcategory has been revised and renamed
to "environmental quality assessments." The environmental management system
subcategory has been eliminated.
3. Use of SEPS to Mitigate Stipulated Penalties. The final SEP Policy prohibits the
use of SEPs to mitigate claims for stipulated penalties, but does indicate that in
defined extraordinary circumstances, I may approve a deviation from this
prohibition.,
4. Penalty Calculation Methodology. The penalty calculation steps have been better
defined and broken into five steps rather than three. A calculation worksheet,
keyed to the text of the Policy, has been added. The penalty mitigation
guidelines, have not been substantively changed, only clarified.
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5. Legal Guidelines. The legal guidelines have been revised to improve clarity and
provide better guidance. The nexus legal guideline has been revised to make it
easier to apply. The fifth legal guideline concerning appropriations has been
revised and subdivided into four sections.
Questions regarding the final SEP Policy should be directed to Ann Kline (202-564-0119)
in the Multimedia Enforcement Division.
Attachment
cc: (w/attachment)
OECA Office Directors
Regional Counsels, Regions DC
Director, Office of Environmental Stewardship, Region I
Director, Division of Enforcement and Compliance Assurance, Region II
Director, Compliance Assurance and Enforcement Division, Region VI
Director, Office of Enforcement Compliance and Environmental Justice, Region VIII
Regional Enforcement Coordinators, Regions I - X
Chief, DOJ, EES
SEP Workgroup Members
David Hindin, Chair, EPTDD
Leon Acierto, V
Christopher Day, III
Joe Boyle, V
Lourdes Bufill, WED
Becky Dolph, VII
Karen Dworkin, DOJ, EES
Gwen Fitz-Henley, IV
Melanie Garvey, FFEO
Mark Haag, DOJ, PSLS
Tanya Hill, OGC
Leslie Jones, OSRE
Maureen Katz, DOJ, EES
Amelia Katzen, I
Ann Kline, MED
Gerard Kraus, MED
Sylvia Liu, DOJ, PSLS
Amy Miller, IX
Peter Moore, MED
Mike Northridge, OSRE
Reginald Pallesen, V
Rudy Perez, II
Erv Pickell, AED
JoAnn Semones, DC
Efren Ordonez, VI
Lawrence Wapensky, VIII
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EPA SUPPLEMENTAL ENVIRONMENTAL PROJECTS POLICY
Effective May 1,1998
A. INTRODUCTION
*
1. Background
In settlements of environmental enforcement cases, the U.S. Environmental Protection
Agency (EPA) requires the alleged violators to achieve and maintain compliance with Federal
environmental laws and regulations and to pay a civil penalty. To further EPA s goals to protect
and enhance public health and the environment, in instances environmentally beneficial projects,
or Supplemental Environmental Projects (SEPs), may be part of the settlement. This policy sets
forth the types of projects that are permissible as SEPS, the penalty mitigation appropriate for a
particular SEP, and the terms and conditions under which they may become part of a settlement.
The Primary purpose of this Policy is to encourage and obtain environmental and Public health
protection and improvements that may not otherwise have occurred without the settlement
incentives provided by this Policy.
In settling enforcement actions, EPA requires alleged violators to promptly cease the
violations and, to the extent feasible, remediate any harm caused by the violations. EPA also
seeks substantial monetary penalties in order to deter noncompliance. Without penalties,
regulated entities would have an incentive to delay compliance until they are caught and ordered
to comply. Penalties promote environmental compliance and help protect public health by
deterring future violations by the same violator and deterring violations by other members of the
regulated community. Penalties help ensure a national level playing field by ensuring that
violators do not obtain an unfair economic advantage over their competitors who made the
necessary expenditures to comply on time. Penalties also encourage regulated entities to adopt
pollution prevention and recycling techniques in order to minimize their pollutant discharges and
reduce their potential liabilities.
Statutes administered by EPA generally contain penalty assessment criteria that a court or
administrative law judge must consider in determining an appropriate penalty at trial or a
hearing. In the settlement context, EPA generally follows these criteria in exercising its
discretion to establish an appropriate settlement penalty. In establishing an appropriate penalty,
EPA considers such factors as the economic benefit associated with the violations, the gravity or
seriousness of the violations, and prior history of violations. Evidence of a violators commitment
and ability to perform a SEP is also a relevant factor for EPA to consider in establishing an
appropriate settlement penalty. All else being equal, the final settlement penalty will be lower
for a violator who agrees to perform an acceptable SEP compared to the violator who does not
agree to perform a SEP.
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The Agency encourages the use of SEPs that are consistent with this Policy. SEPs may
not be appropriate in settlement of all cases, but they are an important part of EPA's enforcement
program. While penalties play an important role in environmental protection by deterring
violations and creating a level playing field, SEPs can play an additional role in securing
significant environmental or public health protection and improvements. SEPs may be
particularly appropriate to further the objectives in the statutes EPA administers and to achieve
other policy goals, including promoting pollution prevention and environmental justice.
2. Pollution Prevention arid Environmental Justice
The Pollution Prevention Act of 1990 (42 U.S.C. §13101 et seq., November 5,1990)
identifies an environmental management hierarchy in which pollution "should be prevented or
reduced whenever feasible; pollution that cannot be prevented should be recycled in an
environmentally safe manner whenever feasible; pollution that cannot be prevented or recycled
should be treated hi an environmentally safe manner whenever feasible; and disposal or other
release into the environment should be employed only as a last resort..." (42 U.S.C. § 13103).
Selection and evaluation of proposed SEPs should be conducted generally in accordance with
this hierarchy of environmental management, i.e., SEPs involving pollution prevention
techniques are preferred over other types of reduction or control strategies, and this can be
reflected in the degree of consideration accorded to a defendant/respondent before calculation of
the final monetary penalty.
Further, there is an acknowledged concern, expressed hi Executive Order, 12898 on
environmental justice, that segments of the nation's population, i.e., low income and/or minority
populations, are disproportionately burdened by pollutant exposure. Emphasizing SEPs in
communities where environmental justice concerns are present helps ensure that persons who
spend significant portions of their time in areas, or depend on food and water sources located
near, where the violations occur would be protected. Because environmental justice is not a
specific technique or process but an overarching goal, it is not listed as a particular SEP category;
but EPA encourages SEPs in communities where environmental justice may be an issue.
3. Using this Policy
In evaluating a proposed project to determine if it qualifies as a SEP and then determining
how much penalty mitigation is appropriate, Agency enforcement and compliance personnel
should use the following five step process:
(1) Ensure that the project meets the basic definition of a SEP. (Section B)
(2) Ensure that all legal guidelines, including nexus, are satisfied. (Section C)
(3) Ensure that the project fits within one (or more) of the designated categories of SEPS.
(Section D)
(4) Determine the appropriate amount of penalty mitigation. (Section E)
(5) Ensure that the project satisfies all of the implementation and other criteria. (Sections F,
G,H,IandJ)
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4. Applicability
This Policy revises and hereby supersedes the February 12,1991 Policy on the Use of
Supplemental Environmental Projects in EPA Settlements and the May 1995 Interim Revised
Supplemental Environmental Projects Policy. This Policy applies to settlements of all civil
judicial and administrative actions filed after the effective date of this Policy (May 1,1998), and
to all pending cases in which the government has not reached agreement in principle with the
alleged violator on the specific terms of a SEP.
This Policy applies to all civil judicial and administrative enforcement actions taken
under the authority of the environmental statutes and regulations that EPA administers. It also
may be used by EPA and the Department of Justice in reviewing proposed SEPs in settlement of
citizen suits. This Policy also applies to federal agencies that are liable for the payment of civil
penalties. Claims for stipulated penalties for violations consent decrees or other settlement
agreements may not be mitigated by the use of SEPs.1
This is a settlement Policy and thus is not intended for use by EPA, defendants,
respondents, courts or administrative law judges at a hearing or in a trial. Further, whether the
Agency decides to accept a proposed SEP as part of a settlement, and the amount of any penalty
mitigation that may be given for a particular SEP, is purely within EPA s discretion. Even
though a project appears to satisfy all of the provisions of this Policy, EPA may decide, for one
or more reasons, that a SEP is not appropriate (e.g., the cost of reviewing a SEP proposal is
excessive, the oversight costs of the SEP may be too high, the defendant/respondent may not
have the ability or reliability to complete the proposed SEP, or the deterrent value of the higher
penalty amount outweighs the benefits of the proposed SEP).
This Policy establishes a framework for EPA to use in exercising its enforcement
discretion in determining appropriate settlements. In some cases, application of this Policy may
not be appropriate, in whole or part. In such cases, the litigation team may, with the advance
approval of Headquarters, use an alternative or modified approach.
1 In extraordinary circumstances, the Assistant Administrator may consider mitigating
potential stipulated penalty liability using SEPs where: (1) despite the circumstances giving rise
to the claim for stipulated penalties, the violator has the ability and intention to comply with a
new settlement agreement obligation to implement the SEP; (2) there is no negative impact on
the deterrent purposes of stipulated penalties; and (3) the settlement agreement establishes a
range for stipulated penalty liability for the violations at issue. For example, if a
respondent/defendant has violated a settlement agreement which provides that a violation of X
requirement subjects it to a stipulated penalty between $1,000 and $5,000, then the Agency may
consider SEPs in determining the specific penalty amount that should be demanded.
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B. DEFINITION AND KEY CHARACTERISTICS OF A SEP
Supplemental environmental projects are defined as environmentally beneficial projects
which a defendant/respondent agrees to undertake in settlement of an enforcement action, but
which the defendant/respondent is not otherwise legally required to perform. The three
bolded key parts of this definition are elaborated below.
"Environmentally beneficial" means a SEP must improve, protect, or reduce risks to
public health, or the environment at large. While in some cases a SEP may provide the alleged
violator with benefits, there must be no doubt that the project primarily benefits the public health
or the environment.
"in settlement of an enforcement action" means: 1) EPA has the opportunity to help
shape the scope of the project before it is implemented; and 2) the project is not commenced until
after the Agency has identified a violation (e.g., issued a notice of violation, administrative order,
or complaint).2
"Not otherwise legally required to perform" means that the project or activity is not
required by any federal, state or local law or regulation. Further, SEPs cannot include actions
which the defendant/respondent is likely to be required to perform:
.- . - -,v-»""*-
(a) as injunctive relief3 in the instant case;
(b) as injunctive relief in another legal action EPA, or another regulatory agency
could bring;
(c) as part of an existing settlement or order in another legal action; or,
(d) by a state or local requirement.
SEPs may include activities which the defendant/respondent will be come legally obligated to
undertake two or more years in the future, if the project will result in the facility coming into
compliance earlier than the deadline. Such "accelerated compliance" projects are not allowable,
2 Since the primary purpose of this Policy is to obtain environmental or public health
benefits that may not have occurred "but for" the settlement projects which the defendant has
previously committed to perform or have been started before the Agency has identified a
violation are not eligible as SEPS. Projects which have been committed to or started before the
identification of a violation may mitigate the penalty in other ways. Depending on the specifics,
if a regulated entity had initiated environmentally beneficial projects before the enforcement
process commenced, the initial penalty calculation could be lower due to the absence of
recalcitrance, no history of other violations, good faith efforts, less severity of the violations, or a
shorter duration of the violations.
3 The statutes EPA administers generally provide a court with broad authority to order a
defendant to cease its violations, take necessary steps to prevent future violations, and to
remediate any harm caused by the violations. If a court is likely to order a defendant to perform
a specific activity in a particular tune, such an activity does not qualify a s a SEP.
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however, if the regulation or statute provides a benefit (e.g., a higher emission limit) to the
defendant/respondent for early compliance.
Also, the performance of a SEP reduces neither the stringency nor timeliness
requirements of Federal environmental statutes and regulations. Of course, performance of a
SEP does not alter the defendant/respondent's obligation to remedy a violation expeditiously and
return to compliance.
C. LEGAL GUIDELINES
EPA has broad discretion to settle cases, including the discretion to include SEPs as an
appropriate part of the settlement. The legal evaluation of whether a proposed, SEP is within
EPA's authority and consistent with all statutory and Constitutional requirements may be a
complex task. Accordingly, this Policy uses five legal guidelines to ensure that our SEPs are
within the Agency's and a federal court's authority, and do not run afoul of any Constitutional or
statutory requirements.4
1. A project cannot be inconsistent with any provision of the underlying statutes.
2. All projects must advance at least one of the objectives of the environmental statutes
that are the basis of the enforcement action and must have adequate nexus. Nexus is the
relationship between the violation and the proposed project. This relationship exists only
if:
a. the project is designed to reduce the likelihood that similar violations will
occur in the future; or
b. the project reduces the adverse impact to public health or the environment to
which the violation at issue contributes; or
c. the project reduces the overall risk to public health or the environment
potentially affected by the violation at issue.
Nexus is easier to establish, if the primary impact of the project is at the site where the
alleged violation occurred or at a different site in the same ecosystem or within the
immediate geographic5 area. Such SEPs may have sufficient nexus even if the SEP
4 These legal guidelines are based on federal law as it applies to EPA; States may have
more or less flexibility in the use of SEPs depending on their laws.
5 The immediate geographic area will generally be the area within a 50 mile radius of the
site on which the violations occurred. Ecosystems or geographic proximity is not by itself a
sufficient basis for nexus; a project must always satisfy subparagraph a, b, or c in the definition
of nexus. In some cases, a project may be performed at a facility or site not owned by the
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addresses a different pollutant in a different medium. In limited cases, nexus may exist
even though a project will involve activities outside of the United States.6 The cost of a
project is not relevant to whether there is adequate nexus.
3. EPA may not play any role in managing or controlling funds that may be set aside or
escrowed for performance of a SEP. Nor may EPA retain authority to manage or
administer the SEP. EPA may, of course, perform oversight to ensure that a project is
implemented pursuant to the provisions of the settlement and have legal recourse if the
SEP is not adequately performed.
4. The type and scope of each project are defined in the signed settlement agreement.
This means the "what, where and when" of a project are defined by the settlement
agreement. Settlements in which the defendant/respondent agrees to spend a sum of
money on a project(s) to be defined later (after EPA or the Department of Justice signs
the settlement agreement) are not allowed.
5. a. A project cannot be used to satisfy EPA's statutory obligation or another
federal agency's obligation to perform a particular activity. Conversely, if a
federal statute prohibits the expenditure of federal resources on a particular
activity, EPA cannot consider projects that would appear to circumvent that
prohibition.
b. A project may not provide EPA or any federal agency with resources to
perform a particular activity for which Congress has specifically appropriated
funds. A project may not provide EPA with additional resources to perform a
particular activity for which Congress has earmarked funds in an appropriations
committee report.7 Further, a project cannot be used to satisfy EPA's statutory
obligation or another federal agency's statutory obligation, to spend funds on a
particular activity. A project, however, may related to a particular activity for
which Congress has specifically appropriated or earmarked funds.
c. A project may not provide additional resources to support specific activities
performed by EPA employees or EPA contractors. For example, if EPA has
developed a brochure to help a segment of the regulated community comply with
environmental requirements, a project may not directly, or indirectly, provide
additional resources to revise, copy or distribute the brochure.
defendant/respondent.
6 All projects which would include activities outside the U.S. must be approved in
advance by Headquarters and/or the Department of Justice. See section J.
7 Earmarks are instructions for changes to EPA's discretionary budget authority made by
appropriations committee in committee reports that the Agency generally honors as a matter of
policy.
8
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d. A project may not provide a federal grantee with additional funds to perform a
specific task identified within an assistance agreement.
D. CATEGORIES OF SUPPLEMENTAL ENVIRONMENTAL PROJECTS
EPA has identified seven specific categories of projects which way qualify as SEPS. In
order for a proposed project to be accepted as a SEP, it must satisfy the requirements of at least
one category plus all the other requirements established in this Policy.
1. Public Health
A public health project provides diagnostic preventative and/or remedial components of
human healthcare which is related to the actual or potential damage to human health caused by
the violation. This may include epidemiological data collection and analysis, medical
examinations of potentially affected persons, collection and analysis of blood/fluid/tissue
samples, medical treatment and rehabilitation therapy.
Public health SEPs are acceptable only where the primary benefit of the project is the
population that was harmed or put at risk by the violations.
2. Pollution Prevention
A pollution prevention project is one which reduces the generation of pollution through
"source reduction," i.e., any practice which reduces the amount of any hazardous substance,
pollutant or contaminant entering any waste stream or otherwise being released into the
environment prior to recycling, treatment or disposal. (After the pollutant or waste stream has
been generated, pollution prevention is no longer possible and the waste must be handled by
appropriate recycling, treatment, or disposal methods.)
Source reduction may include equipment or technology modifications, process or
procedure modifications, reformulation or redesign of products, substitution of raw materials, .
and improvements in housekeeping, maintenance, inventory control, or other operation and
maintenance procedures. Pollution prevention also includes any project which protects natural
resources through conservation or increased efficiency in the use of energy, water or other
materials. "In process recycling" wherein waste materials produced during a manufacturing
process are returned directly to production as raw materials on site, is considered a pollution
prevention project.
In all cases, for a project to meet the definition of pollution prevention there must be an
overall decrease in the amount and/or toxicity of pollution released to the environment, not
merely a transfer of pollution among media. This decrease may be achieved directly or through
increased efficiency (conservation) in the use of energy, water or other materials. This is
consistent with the Pollution Prevention Act of 1990 and the Administrator's "Pollution
Prevention Policy Statement: New Directions for Environmental Protection," dated June 15,
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3. Pollution Reduction
If the pollutant or waste stream already has been generated or released, a pollution
reduction approach - which employs recycling, treatment, containment or disposal techniques -
may be appropriate. A pollution reduction project is one which results in a decrease hi the
amount and/or toxicity of any hazardous substance, pollutant or contaminant entering any waste
stream or otherwise being released into the environment by an operating business or facility by a
means which does not qualify as "pollution prevention." This may include the installation of
more effective end-of-process control or treatment technology, or improved containment, or safer
disposal of an existing pollutant source. Pollution reduction also includes "out-of-process
recycling," wherein industrial waste collected after the manufacturing process and/or consumer
waste materials are used as raw materials for production offsite.
4. Environmental Restoration and Protection
An environmental restoration and protection project is one which enhances the condition
of the ecosystem or immediate geographic area adversely affected.8 These projects may be used
to restore or protect natural environments (such as ecosystems) and, manmade environments,
such as facilities and buildings. This category also any project which protects the ecosystem
from actual or potential damage resulting from the violation or improves the overall condition of
the ecosystem.9 Examples of such projects include: restoration of a wetland in the same
ecosystem along the same avian flyway in which the facility is located; or purchase and
management of a watershed area by the defendant/respondent to protect a drinking water supply
where the violation (e.g., a reporting violation) did not directly damage the watershed but
potentially could lead to damage due to unreported discharges. This category also includes
projects which provide for the protection of endangered species (e.g., developing conservation
programs or protecting habitat critical to the well being of a species endangered by the violation).
In some projects where a defendant/respondent has agreed to restore and then protect
lands, the question arises as to whether the project may include the creation or maintenance of
recreational improvements, such as hiking and bicycle trails. The costs associated with such
recreational improvements may be included in the total SEP cost provided they do not impair the
environmentally beneficial purposes of the project and they constitute only an incidental portion
of the total resources spent on the project.
In some projects where the parties intend that the property be protected so that the
ecological and pollution reduction purposes of the land are maintained in perpetuity, the
defendant/respondent may sell or transfer the land to another party with the established resources
8 If EPA lacks the authority to require repair of the damage caused by the violation, then
repair itself may constitute a SEP.
9 Simply preventing new discharges into the ecosystem, as opposed to taking affirmative
action directly related to preserving existing conditions at a property, would not constitute a
restoration and protection project, but may fit into another category, such as pollution prevention
or pollution reduction.
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and expertise to perform this function such as a state park authority. In some cases, the U.S. Fish
and Wildlife Service or the National Park Service may be able to perform this function.10
With regard to manmade environments, such projects may involve the remediation of
facilities and buildings, provided such activities are not otherwise legally required. This includes
the removal/mitigation of contaminated materials, such as soils, asbestos and lead paint which
are a continuing source of releases and/or threat to individuals.
5. Assessments and Audits
Assessments and audits, if they are not otherwise available as injunctive relief, are
potential SEPs under this category. There are three types of projects in this category: a.
pollution prevention assessments; b. environmental quality assessments; and c. compliance
audits. These assessments and audits are only acceptable as SEPs when the
defendant/respondent agrees to provide EPA with a copy of the report. The results may be made
available to the public, except to the extent they constitute confidential business information
pursuant to 40 CFR Part 2, Subpart B:
a. Pollution prevention assessments are systematic, internal reviews of specific proposes
and operations that provide information about opportunities to reduce the use, production, and
generation of toxic and hazardous materials and other wastes. To be eligible for SEPs, such
assessments must be conducted using a recognized pollution prevention assessment or waste
minimization procedure to reduce the likelihood of future violations. Pollution prevention
assessments are acceptable as SEPs without implementation commitment by the
defendant/respondent. Implementation is not required because drafting implementation
requirements before the results of an assessment are known is difficult. Further, many of the
implementation recommended may constitute activities that are in the defendant/respondent's
own economic interest.
b. Environmental quality assessments are investigations of: the condition of the
environment at a site not owned or operated by the defendant/respondent; the environment
impacted by a site or a facility regardless of whether the site or facility is owned or operated by
the defendant/respondent; or threats to human health or the environment relating to a site or a
facility regardless of whether the site or facility is owned or operated by the
defendant/respondent. These include, but are not limited to: investigations of levels or sources
of contamination in any environmental media at a site; or monitoring of the air, soil or water
quality surrounding a site or facility. To be eligible as SEPS, such assessments must be
conducted in accordance with recognized protocols, if available, applicable to the type of
assessment to be undertaken. Expanded sampling or monitoring by a defendant/respondent of its
10 These federal agencies have explicit authority to accept gifts of land and money in
circumstances. All projects with these federal agencies must be reviewed and approved in
advance by legal council in the agency, usually in the Solicitor's Office in the Department of the
Interior.
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own emissions or operations do does not qualify as a SEP to the extent it is ordinarily available
as injunctive relief.
Environmental quality assessment SEPs may jioj be performed on the following types of
sites: sites that are on the National Priority List under CERCLA § 105,40 CFR Part 300,
Appendix B; sites that would qualify for an EPA removal action pursuant to CERCLA §104(a)
and the National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR §300.415;
and sites for which the defendant/respondent or another party would likely be ordered to perform
a remediation activity pursuant to CERCLA §106, RCRA §7003, RCRA 3008(h), CWA §311, or
another federal law.
c. Environmental compliance audits are independent evaluations of a
defendant/respondents compliance status with environmental requirements. Credit is only given
for the costs associated with conducting the audit While the SEP should require all violations
discovered by the audit to be promptly corrected, no credit is given for remedying the violation
since persons are required to achieve and maintain compliance with environmental requirements.
In general, compliance audits are acceptable as SEPs only when the defendant/respondent is a
small business or small community.11'l2
6. Environmental Compliance Promotion
An environmental compliance promotion project provides training or technical support to
other members of the regulated community to: 1) identify, achieve and maintain compliance
with applicable statutory and regulatory requirements or 2) go beyond compliance by reducing
the generation, release, or disposal of pollutants beyond legal requirements. For these types of
projects, the defendant/respondent may lack the experience, knowledge, or ability to implement
the project itself, and, if so, the defendant/respondent should be required to contract with an
appropriate expert to develop and implement the compliance promotion project. Acceptable
projects may include, for example, producing a seminar directly related to correcting widespread
or prevalent violations within the defendant/ respondents economic sector.
Environmental compliance promotion SEPs are acceptable only where the primary impact
of the project is focused on the same regulatory program requirements which were violated and
where EPA has reason to believe that compliance in the sector would be significantly advanced
by the proposed project. For example, if the alleged violations involved Clean Water Act
11 For purposes of this Policy, a small business is owned by a person or another entity that
employs 100 or fewer individuals. Small business could be individuals, privately held
corporations, farmers, landowners, partnerships, and others. A small community is one
comprised of fewer than 2,500 persons.
12 Since most large companies routinely conduct compliance audits, to mitigate penalties
for such audits would reward violators for performing an activity that most companies already
do. In contrast, these audits are not commonly done by small businesses, perhaps because such
audits may be too expensive.
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''' T- • v '.•'••
pretreatment violations, the compliance promotion SEP must be directed at ensuring compliance
with pretreatment requirements. Environmental compliance promotion SEPs are subject to
special approval requirements per Section J below.
7. Emergency Planning and Preparedness
An emergency planning and preparedness project provides assistance ~ such as
computers and software, communication systems, chemical emission detection and inactivation
equipment, HAZMAT equipment, or training ~ to a responsible state or local emergency
response or planning entity. This is to enable these organizations to fulfill their obligations under
the Emergency Planning and Community Right-to-Know Act (EPCRA) to collect information to
assess the dangers of hazardous chemicals present at facilities within their jurisdiction, to
develop emergency response plans, to train emergency response personnel and to better respond
to chemical spills.
EPCRA requires regulated sources to provide information on chemical production,
storage and use to State Emergency Response Commissions (SERCs), Local Emergency
Planning Committees (LEPCs) and Local Fire Departments (LFDs). This enables states and
local communities to plan for and respond effectively to chemical accidents and inform
potentially affected citizens of the risks posed by chemicals present in their communities, thereby
enabling them to protect the environment or ecosystems which could be damaged by an accident.
Failure to comply with EPCRA impairs the ability of states and local communities to meet their
obligations and places emergency response personnel, the public and the environment at risk
from a chemical release.
Emergency planning and preparedness SEPs are acceptable where the Project is within
the same emergency planning district or state affected by the violations and EPA has not
previously provided the entity with financial assistance for the same purposes as the proposed
SEP. Further, this type of SEP is allowable only when the SEP involves non-cash assistance and
there are violations of EPCRA, or reporting violations under CERCLA §103, or CAA §112(r), or
violations of other emergency planning, spill or release requirements alleged in the complaint.
8. Other Types of Projects
Projects determined by the case team to have environmental merit which do not fit within
at least one of the seven categories above but that are that are otherwise fully consistent with all
other provisions of this Policy, may be accepted with the advance approval of the Office of
Enforcement and Compliance Assurance.
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9. Projects Which are Not Acceptable as SEPs
The following are examples of the types of projects that are not allowable as SEPS:
a. General public educational or public environmental awareness projects, e.g.,
sponsoring public seminars, e.g., sponsoring public seminars, conducting tours of
environmental controls at a facility, promoting recycling in a community;
b. Contributions to environmental research at a college or university;
c. Conducing a project which, though beneficial to a community, is unrelated to
environmental protection, e.g., making contributions to a non-profit, public interest,
environmental, or other charitable organization, or donating playground equipment;
d. Studies or assessments without a requirement to address the problems identified in the
study (except as provided for in § D.5 above);
e. Projects which the defendant/respondent will undertake, in whole or part, with low-
interest federal loans, federal contracts, federal grants, or other forms of federal financial
assistance or non-federal assistance (e.g., loan guarantees).
E. CALCULATION OF THE FINAL PENALTY
Substantial penalties are an important part of any settlement for legal and policy reasons.
Without penalties there would be no deterrence, as regulated entities would have little incentive
to comply. Additionally, penalties are necessary as a matter of fairness to those regulated entities
that make the necessary expenditures to comply on time: violators should not be allowed to
obtain an economic advantage over their competitors who complied.
As a general rule, the net costs to be incurred by a violator in performing a SEP may be
considered as one factor in determining an appropriate settlement amount. In settlements in
which defendant/respondents commit to conduct a SEP, the final settlement penalty must
equal or exceed either: a) the economic benefit of noncompliance plus 10 percent of the
gravity component; or b) 25 percent of the gravity component only; whichever is greater.
Calculating the final penalty in a settlement which includes a SEP is a five step process.
Each of the five steps is explained below. The five steps are also summarized in the penalty
calculation worksheet attached to this Policy.
Step 1: Settlement Amount Without a SEP
a. The applicable EPA penalty policy is used to calculate the economic benefit of
noncompliance.
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b. The applicable EPA penalty policy is used to calculate the gravity component of the
penalty. The gravity component is all of the penalty other than the identifiable economic benefit
amount, after gravity has been adjusted by all other factors in the penalty policy (e.g., audits,
good faith, litigation considerations), except for the SEP.
c. The amounts in steps la and b are added. This sum is the minimum amount that
would be necessary to settle the case without a SEP.
Step.2: Minimum Penalty Amount With a SEP
The minimum penalty amount must equal or exceed the economic benefit of
noncompliance plus 10 percent of the gravity component, or 25 percent of the gravity component
only, whichever is greater. The minimum penalty amount is calculated as follows:
a. Calculate 10 percent of gravity (multiply amount in step l..b by 0.1).
b. Add economic benefit (amount in step 1 .a) to amount in step 2.a.
c. Calculate 25 percent of gravity (multiply amount in step 1 .b by 0.25).
d. Identify the minimum penalty amount: the greater of step 2.cor step 2b.13
Step 3. Calculate the SEP Cost
The net present after-tax cost of the SEP, hereinafter called the "SEP COST,: is the
maximum amount that EPA may take into consideration in determining an appropriate penalty
mitigation for performance of a SEP. In order to facilitate evaluation of the SEP COST of a
proposed project, the Agency has developed a computer model called PROJECT.14 There are
three types of costs that may be associated with performance of a SEP (which are entered into the
PROJECT model): capital costs (e.g., equipment, buildings); one-time nondepreciable costs
(e.g., removing contaminated materials, purchasing land, developing a compliance promotion
seminar); and annual operation costs and savings (e.g., labor, chemicals, water, power, raw
materials).15
13 Pursuant to the February 1995 Revised Interim Clean Water Act Settlement Penalty
Policy, section V, a smaller minimum penalty amount may be allowed for a municipality.
14 A copy of the PROJECT compute program software and PROJECT User's Manual
may be purchased by calling the National Technology Information Service at (800) 553-6841,
and asking for Document #PB 98-500408GEI, or they may be downloaded from the World Wide
Web at "http://www.epa.gov/oeca/models/."
15 The PROJECT calculated SEP Cost is d reasonable estimate, and not an exact after-tax
calculation. PROJECT does not evaluate the potential for market benefits which may accrue
with the performance of a SEP (e.g., increased sales of a product, improved corporate public
image, or improved employee morale). Nor does it consider costs imposed on the government,
such as the cost to the Agency for oversite of the SEP, or the burden of a lengthy negotiation with
a defendant/respondent who does not propose a SEP until late hi the settlement process; such
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To use PROJECT, the Agency needs reliable estimates of the costs associated with a
defendant/respondent's performance of a SEP, as well as an savings due to such factors as energy
efficiency gains, reduced materials costs, reduced waste disposal costs, or increases hi
productivity. For example, if the annual expenditures in labor and materials of operating a new
waste recycling process is $100,000 per year, but the new process reduces existing hazardous
waste disposal expenditures by $30,000 per year, the net cost of $70,000 is entered into the
PROJECT model (variable 4).
In order to run the PROJECT model properly (i.e., to produce a reasonable estimate of the
net present after tax cost of the project), the number of years that annual operation costs or
savings will be expended in performing the SEP mus be specified. At a minimum, the
defendant/respondent must be required to implement the project for the same number of years
used in the PROJECT model calculation. (For example, if the settlement agreement requires the
defendant/respondent to operate the SEP equipment for two years, two years should be entered as
the input for number of years of annual expense in the PROJECT model.) If costs or savings
appear speculative they should not be entered into the PROJECT model. The PROJECT model
is the primary method to determine the SEP COST for purposes of negotiating settlements.16
EPA does not offer tax advice on whether a regulated entity may deduct SEP
expenditures from its income taxes. If a defendant/respondent states that it will not deduct the
cost of a SEP from it's taxes and it is willing to commit to this in the settlement document, and
provide the Agency with certification upon completion of the SEP that it has not deducted the
SEP expenditures, the PROJECT model calculation should be adjusted to calculate the SEP Cost
without reduction for taxes. This is a simple adjustment to the PROJECT model: just enter a
zero for variable 7, the marginal tax rate. If a business is not willing to make this commitment,
the marginal tax rate in variable 7 should not be set to zero; rather the default settings (or a more
precise estimate of the business' marginal tax rates) should be used in variable 7.
If the PROJECT model reveals that a project has a negative cost during the period of
performance of the SEP, this means that it represents a positive cash flow to the
defendant/respondent and is a profitable project. Such a project is generally not acceptable as a
SEP. If a project generates a profit, a defendant/respondent should, and probably will, based on
its own economic interests, implement the project. While EPA encourages regulated entities to
undertake environmentally beneficial projects that are economically profitable, EPA does not
factors may be considered in determining a mitigation percentage rather than in calculating after-
tax cost.
16 See PROJECT User's Manual, January 1995. If the PROJECT model appears
inappropriate to a particular fact situation, EPA Headquarters should be consulted to identify an
alternative approach. For example, PROJECT does not readily calculate the cost of an
accelerated compliance SEP. The cost of such a SEP is only the additional cost associated with
doing the project early (ahead of the regulatory requirement) and it needs to be calculated in a
slightly different manner. Please consult with the Office of Regulatory Enforcement for
directions on how to calculate the cost of such projects.
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believe violators should receive a bonus in the form of penalty mitigation to undertake such
projects as part of an enforcement action. EPA does not offer subsidies to complying companies
and it would thus be inequitable and perverse to provide such subsidies only to violators. In
addition, the primary goal of SEPs is to secure a favorable environmental or public health
outcome which would not have occurred bjit for the enforcement case settlement. To allow SEP
penalty mitigation for profitable projects would thwart this goal.17
Step 4: Determine the SEP Mitigation Percentage and then the Mitigation Amount.
Step 4.a: Mitigation Percentage. After the SEP COST has been calculated, EPA should
determine what percentage of that cost may be applied as mitigation against the amount EPA
would settle for but for the SEP. The quality of the SEP should be examined as to whether and
how effectively it achieves each of the following six factors listed below. (The factors are not
listed in priority order.)
• Benefits to the Public or Environment at Large. While all SEPs benefit public health or
the environment, SEPs which perform well on this factor will result in significant and
quantifiable reduction in discharges of pollutants to the environment and the reduction in
risk to the general public. SEPs also will perform well on this factor to the extent they
result in significant and, to the extent possible, measurable progress in protecting and
restoring ecosystems (including wetlands and endangered species habitats
• Innovativeness. SEP s which perform well on this factor will further the development,
implementation, or dissemination of innovative processes, technologies, or methods
which more effectively reduce the generation, release or disposal of pollutants; conserve
natural resources; restore and protect ecosystems; protect endangered species; or promote
compliance. This includes "technology forcing" techniques which may establish new
regulatory "benchmarks."
• Environmental Justice. SEPs which perform well on this factor will mitigate damage or
reduce risk to minority or low income populations which may have been
disproportionately exposed to pollution or are at environmental risk.
• Community Input SEPs which perform well on this factor will have been developed
taking into consideration input received from the affected community. No credit should
be given for this factor if the defendant/respondent did not actively participate in
soliciting and incorporating public input into the SEP.
• Multimedia Impacts. SEPs which perform well on this factor will reduce emissions to
more than one medium.
17 The penalty mitigation guidelines provide that the amount of mitigation should not
exceed the net cost of the project. To provide penalty mitigation for profitable projects would be
providing a credit in excess of net costs.
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• Pollution Prevention. SEPs which perform well on this factor will develop and
implement pollution prevention techniques and practices.
The better the performance of the SEP under each of these factors, the higher the
appropriate mitigation percentage. The percent of penalty mitigation is within EPA's discretion;
there is no presumption as to the correct percentage of mitigation. The mitigation percentage
should not exceed 80 percent of the SEP COST, with two exceptions:
(1) For small businesses, government agencies or entities, and nonprofit organizations,
the mitigation percentage of the SEP COST may be set as high as 100 percent if the
defendant/respondent can demonstrate the project is of outstanding quality.
(2) For any defendant/respondent, if the SEP implements pollution prevention, the
mitigation percentage of the SEP COST may be set as high as 100 percent if the
.defendant/respondent can demonstrate that the project is of outstanding quality.
If the government must allocate significant resources to monitoring and reviewing the
implementation of a project, a lower mitigation percentage of the SEP COST may be appropriate.
In administrative enforcement actions hi which there is a statutory limit (commonly called
"caps") on the total maximum penalty that may be sought in a single action, the cash penalty
obtained plus the amount of penalty mitigation credit due to the SEPs shall not exceed the limit.
Step 4.b: SEP Mitigation Amount. The SEP COST (calculated pursuant to step 3) is
multiplied by the mitigation percentage (step 4.a) to obtain the SEP mitigation amount, which is
the amount of the SEP cost that may be used in potentially mitigating the preliminary settlement
penalty.
Step 5: Final Settlement Policy
5.a. The SEP mitigation amount (step 4.b) is then subtracted from the settlement amount
without a SEP (step l.c).
5.b. The greater of step 2.d or step 5.a is the minimum final settlement penalty allowable
based on the performance of the SEP.
F. LIABILITY FOR PERFORMANCE
Defendants/respondents (or their successors in interest) are responsible and legally liable
for ensuring that a SEP is completed satisfactorily. A defendant/respondent may not transfer this
responsibility and liability to someone else, commonly called a third party. Of course, a
defendant/respondent may use contractors or consultants to assist it in implementing a SEP.18
18 Non-profit organizations, such as universities and public interest groups, may function
as contractors or consultants.
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G. OVERSIGHT AND DRAFTING ENFORCEABLE SEPS
T he settlement agreement should accurately and completely describe the SEP. (See,
related legal guideline 4 in § C above.) It should describe the specific actions to be performed by
the defendant/respondent and provide for a reliable and objective means to verify that the
defendant/respondent has timely completed the project. This may require the
defendant/respondent to submit periodic reports to EPA. The defendant/respondent may utilize
an outside auditor to verify performance, and the defendant/respondent should be made
responsible for the cost of any such activities. The defendant/respondent remains responsible for
the quality and timeliness of any actions performed or any reports prepared or submitted by the
auditor. A final report certified by an appropriate corporate official, acceptable to EPA, and
evidencing completion of the SEP and documenting SEP expenditures, should be required.
To the extent feasible, defendant/respondents should be required to quantify the benefits
associated with the project and provide EPA with a report setting forth how the benefits were
measured or estimated. The defendant/respondent should agree that whenever it publicizes
a SEP or the results of a SEP, it state in a prominent manner that the project is being
undertaken, as part of the settlement of an enforcement action.
The drafting of a SEP will vary depending on whether the SEP is being performed as part
of an administrative or judicial enforcement action. SEPs with long implementation schedules
(e.g., 18 months or longer), SEPs which require EPA review and comment on interim milestone
activities, and other complex SEPs may not be appropriate in administrative enforcement
actions. Specific guidance on the proper drafting of settlement documents requiring SEPs is
provided in a separate document.
H. FAILURE OF A SEP AND STIPULATED PENALTDZS
If a SEP is not completed satisfactorily, the defendant/respondent should be required,
pursuant to the terms of the settlement document, to pay stipulated penalties for its failure.
Stipulated penalty liability should be established for each of the scenarios set forth below as
appropriate to the individual case.
1. Except as provided in paragraph 2 immediately below, if the SEP is not completed
satisfactorily, a substantial stipulated penalty should be required. Generally, a substantial
stipulated penalty is between 75 and 150 percent of the amount by which the settlement
penalty was mitigated on account of the SEP.
2. If the SEP is not completed satisfactorily, but the defendant/respondent: a) made good
faith and timely effort to complete the project;; and b) certifies, with supporting
documentation, that at least 90 percent of the amount of money which was required to be
spent was expended on the SEP, no stipulated penalty is necessary.
3. If the SEP is satisfactorily completed, but the defendant/respondent spent less than 90
percent of the amount of money required to be spent for the project, a small stipulated
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penalty should be required. Generally, a small stipulated penalty is between 10 and 25
percent of the amount by which the settlement penalty was mitigated on account of the
SEP.
4. If the SEP is satisfactorily completed, and the defendant/respondent spent at least 90
percent of the amount of money required to be spent for the project, no stipulated penalty
is necessary.
The determinations of whether the SEP has been satisfactorily completed (i.e., pursuant to
the terms of the agreement) and whether the defendant/respondent has made a good faith, timely
effort to implement the SEP should be reserved to the sole discretion of EPA, especially in
administrative actions in which there is often no formal dispute resolution process.
I. COMMUNITY INPUT
In appropriate cases, EPA should make special efforts to seek input on project proposals
from the local community that may have been adversely impacted by the violations.19 Soliciting
community input into the SEP development process can: result in SEPs that better address the
needs of the impacted community; promote environmental justice; produce better community
understanding of EPA enforcement; and improve relations between the community and the
violating facility. Community involvement in SEPs may be most appropriate in cases where the
range of possible SEPs is great and/or multiple SEPs may be negotiated.
When soliciting community input, the EPA negotiating team should follow the four
guidelines set forth below:
1. Community input should be sought after EPA knows that the defendant/respondent is
interested in doing a SEP and is willing to seek community input, approximately how
much money may be available for doing a SEP, and that settlement of the enforcement
action is likely. If these conditions are not satisfied, EPA will have very little information
to provide communities regarding the scope of possible SEPs.
2. The EPA negotiating team should use both informal and formal methods to contact the
local community. Informal methods may involve telephone calls to local community
organizations, local churches, local elected leaders, local chambers of commerce or other
groups. Since EPA may not be able to identify all interested community groups, a public
notice in a local newspaper may be appropriate.
19 In civil judicial cases, the Department of Justice already seeks public comment on
lodged consent decrees through a Federal Register notice. See 20 CFR §50.7. In administrative
enforcement actions, there are also public notice requirements that are followed before a
settlement is finalized. See 40 CFR Part 22.
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3. To ensure that communities have a meaningful opportunity to participate, the EPA
negotiating team should provide information to communities about what SEPs are, the
opportunities and limits of such projects, the confidential nature of settlement
negotiations, and the reasonable possibilities and limitations of the current enforcement
action. This can be done by holding a public meeting, usually in the evening, at a local
school or facility. The EPA negotiating team may wish to use community outreach
experts at EPA or the Department of Justice in conducting this meeting. Sometimes the
defendant/respondent may play an active role at this meeting and have its own experts
assist in the process.
4. After the initial public meeting, the extent of community input and participation in the
SEP development process will have to be determined. The amount of input and
participation likely to vary with each case. Except in extraordinary circumstances and
with agreement of the parties, representatives of community groups will not participate
directly in the settlement negotiations. This restriction is necessary because of the
confidential nature of settlement negotiations and because there is often no equitable
process to determine which community group should directly participate in the
negotiations.
J. EPA PROCEDURES
1. Approvals
The authority of a government official to approve a SEP is included in the officials
authority to settle an enforcement case and thus, subject to the exceptions set forth here, no
special approvals are required. The special approvals apply to both administrative and judicial
enforcement actions as follows:
a. Regions in which a SEP is proposed for implementation shall be given the
opportunity to review and comment on the proposed SEP.
b. In all cases in which a project may not fully comply with the provisions of this
Policy, (e.g., see footnote 1), the SEP must be approved by the EPA Assistant
Administrator for Enforcement and Compliance Assurance. If a project does not
fully comply with all of the legal guidelines in this Policy, the request for approval
must set forth a legal analysis supporting the conclusion that the project is within
EPA's authority and is not otherwise inconsistent with law.
c. In all cases in which a SEP would involve activities outside the United States, the
SEP must be approved in advance by the Assistant Administrator and, for judicial
cases only, the Assistant Attorney General for the Environment and Natural
Resources Division of the Department of Justice.
d. In all cases in which an environmental compliance promotion project (section
D.6) or a project in the "other" category (section D. 8) is contemplated, the project
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must be approved in advance by the appropriate office in OECA, unless otherwise
delegated.
2. Documentation and Confidentiality
In each case in which a SEP is included as part of a settlement, an explanation of the SEP
with supporting materials (including the PROJECT model printout where applicable) must be
included as part of the case file. The explanation of the SEP should explain how the five steps
set forth in Section A.3 above have been used to evaluate the project and include a description of
the expected benefits associated with the SEP. The explanation must include a description by the
enforcement attorney of how nexus and the other legal guidelines are satisfied.
Documentation and explanations of a particular SEP may constitute confidential
settlement information that is exempt from disclosure under the Freedom of Information Act, is
outside the scope of discovery, and is protected by various privileges, including the attorney -
client privilege and the attorney work-product privilege. While individual Agency evaluations of
proposed SEPs are confidential, privileged documents, this Policy is a public document and may
be released to anyone upon request.
This Policy is primarily for the use of U.S. EPA enforcement personnel in settling cases. EPA
reserves the right to change this Policy at any time, without prior notice, or to act at variance
to this Policy. This Policy does not create any rights, duties, or obligations, implied or
otherwise, in any third parties.
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ATTACHMENT
SEP PENALTY CALCULATION WORKSHEET
This worksheet should be used pursuant to section E of the Policy.
Specific Applications of this Worksheet in a Case are Privileged, Confidential Documents.
STEP
AMOUNT
STEP 1 : CALCULATION OF SETTLEMENT WITHOUT A SEP.
1 .a. BENEFIT: The applicable penalty policy is used to calculate the
economic benefit of noncompliance
1 .b. GRAVITY: The applicable penalty policy is used to calculate the
gravity component of the penalty; this is gravity after all adjustments
hi the applicable policy.
1 .c. SETTLEMENT AMOUNT without SEP: Sum of step 1 .a plus 1 .b.
$
$
$
STEP 2: CALCULATION OF THE MINIMUM PENALTY AMOUNT WITH A SEP
2.a. 10% of GRAVITY: Multiply amount in step l.a. plus step 2.a.
2.b. BENEFIT PLUS 1 0% of GRAVITY: Sum of step 1 .a. plus step 2.a.
2.c. 25% of GRAVITY: Multiply amount in step l.b. by 0.25.
2.d. MINIMUM PENALTY AMOUNT: Select greater of step 2.c or step
2.b
STEP 3: CALCULATION OF THE SEP COST USING PROJECT MODEL
$
$
$
$
$
STEP 4: CALCULATION OF MITIGATING PERCENTAGE AND MITIGATION
AMOUNT
4.a. SEP Cost Mitigation Percentage. Evaluate the project pursuant to the
6 mitigation factors in the Policy. Mitigation percentage should not
exceed 80% unless one of the exceptions applies.
4.b. SEP Mitigation Amount. Multiply step 4 by step 4.a.
%
$
ISTEP 5: CALCULATION OF THE FINAL SETTLEMENT PENALTY.
5. a. Subtract step 4.b. from step 1 .c.
5.b. Final Settlement Penalty: Select greater of steo2.d. orsteDS.a.
$
$
23
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 120
Date Signed: April 17,1998
MEMORANDUM
SUBJECT: The Data Sharing Committee's Review of the Surface Water Treatment Rule Data
Needs and Safe Drinking Water Information System (SDWIS) Reporting
Requirements
FROM: Cynthia C. Dougherty, Director
Office of Ground Water and Drinking Water
TO: Addressees
The Data Sharing Committee has completed its review of the data needs and reporting
requirements for the Surface Water Treatment Rule (SWTR). The Committee recommends that
one reporting requirement (filtration requirement determination records) be deleted. The
Committee further recommends that one reporting requirement (new violation type to track
systems that fail to meet filtration installation deadlines) be added and one reporting requirement
(violation duration for treatment technique violations) be modified. The Association of State
Drinking Water Administrators (ASDWA)/EPA Data Management Steering Committee and all
states and regions reviewed these recommendations. The ASDWA/EPA committee concurred
with the recommendations and no state or region raised objections. I also agree with the
recommendations and am sending this memo to officially notify you of this change in the
reporting requirements.
The deletion of the filtration requirement determination record reporting requirement is
effective immediately. Since the other changes that are being made are preferred by many states,
the revised reporting will be allowed as soon as SDWIS/FED can be modified to accept the new
data, and will be required no later than December 1999. Until these new requirements become
effective, the current reporting requirements must, at a minimum, continue to be reported.
Thanks to everyone who participated in this effort, especially those states and regions that
served directly on the Data Sharing Committee. If you have any further questions on this issue,
please contact me at 202-260-5543, or Jan Auerbach at 202-260-5274. You may also wish to
contact Tom Poleck, who prepared the report, at 312-886-2407.
Attachment A is a fact sheet summarizing the changes. Attachment B is the detailed
technical guidance providing the specific reporting requirements. A report providing the detail
supporting the committee's recommendations can be obtained from Tom Poleck.
Attachments
Addressees: State Drinking Water Administrators
1
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Addressees: State Drinking Water Administrators
Regional Drinking Water Program Managers/Coordinators
Regional Drinking Water Enforcement Managers/Coordinators
cc: Data Sharing Committee
ASDWA/EPA Data Management Steering Committee
Robert Blanco, OGWDW
Jan Auerbach, OGWDW.
Vanessa Leiby, ASDWA
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WSG 120
United States
Environmental Protection
Agency
Office of Water 4601
EPA 670/9-91-300 January 1995
Surface Water Treatment Rule
FACT SHEET
The Surface Water Treatment Rule (SWTR) was published in the Federal Register on June 29,1989. It
became effective on December 31,1990. This rule requires water treatment in lieu of water testing
because it regulates contaminants which are
difficult to detect and pose acute health risks.
Under this rule, disinfection is required for surface water systems and for groundwater systems under
the direct influence (UDI) of surface water. These systems must also install filtration if the
microbiological, turbidity and other criteria for avoiding filtration in this rule are not met. All surface
water systems must disinfect.
Water Quality Standards
Maximum Contaminant Level Goals (MCLGs): Zero
Water systems should try to produce water which is free of the microbial contaminants given in Table 1.
These are non-enforceable goals.
Contaminant
Giardia lamblia
Viruses
Legionella
Turbidity
HPC
MCLG
0
0
0
non-turbid
none
Maximum Contaminant Levels (MCLs): Treatment Required
Specific enforceable MCL standards for these microbial contaminants are not established in this rule.
Instead, treatment is required for surface water systems and groundwater systems under the direct
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WSG 120
influence of surface water.
Water Treatment Requirements
Criteria to be met by systems seeking to avoid filtration
Although all systems are required to filter their water, unfiltered systems may avoid this requirement as
long as they meet certain source water quality and system operation criteria. These criteria are given in
Table 2. The water supply source must not exceed bacterial and other standards before the water is
treated. The effectiveness of disinfection will be demonstrated in part by the amount of disinfectant in
treated water and the length of time it is in contact with the water before reaching the first customer.
Criterion
Source water quality
Coliforms
Turbidity
Disinfection
Giardia
Viruses
Residual
Coliform Sampling
25-501 persons served
501-3300
3301-10,000
10,001-25,000
More than 25,000
Standard
acceptable
<5NTU
99.9% effective
99.99% effective
0.2 mg/1 at entry
I/week
2/week
3/week
4/week
5/week
The water system must also operate in a way which minimizes the risk that the supply will be susceptible
to microbiological contamination:
• System must maintain a watershed control program.
• System must have no more than 2 monthly total coliform MCL violations in any consecutive 12
month period.
• System must have no history of waterborne disease outbreaks.
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• Systems serving 10,000 or more people must be in compliance with Total Trihalomethane
requirements.
Criteria for filtered systems
Systems which filter their water must ensure that the overall filtration and disinfection process they use
is performing effectively as demonstrated by turbidity and disinfection criteria. These criteria are given
in Table 3. As with unfiltered systems, effectiveness will be demonstrated in part by the amount of
disinfectant and the length of time it is in contact with the water before reaching the first customer.
System Criteria
Turbidity
Disinfection
Giardia
Viruses
Residual
Standard
<5 NTU at all times
<0.5NTUin95%of
all samples
99.9% effective
99.99% effective
0.2 mg/1 at entry
Compliance
Systems were given time to comply with the water quality standards and treatment requirements of this
rule. Specific dates are given in Table 4.
SystemType Requirement
SW-UF
SW-UF
SW-UF
SW-F
Begin monitoring
Meet all criteria to
avoid filtration
Install filtration if
required to filter
Performance and
monitoring
Date
12/31/90
12/31/91
6/29/93
6/29/93
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GW-UDI
State must notify
system that it is UDI
6/29/94
Surface water (SW) systems
• Unfiltered systems had to meet monitoring requirements within 18 months after the rule became
effective.
• Unfiltered systems had to meet criteria to avoid filtration within 30 months after the rule became
effective.
• Beginning 30 months after the rule became effective, unfiltered systems which failed to meet any
criteria to avoid filtration were required to install filtration within 18 months of such failure.
• Filtered systems had to meet monitoring and treatment performance requirements beginning 48
months after the rule became effective.
Groundwater systems under direct influence of surface water (GWUDI)
States had to determine which Public Water Systems are under direct influence of surface water within 5
years of promulgating the rule.
Variances and Exemptions
Filtration
• Variances are not allowed since systems may avoid filtration by meeting the criteria given above.
• Exemptions are allowed under some conditions as long as an unreasonable risk to health does not
exist.
Disinfection
Because of the acute and serious health effects associated with poor disinfection of surface waters
• Surface water systems must disinfect (no variances or exemptions).
• Exemptions allowed only for the level of disinfection required.
For More Information
Call the Safe Drinking Water Hotline at 1-800-426-4791
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- WSG 120A
Date Signed: January 1993
Federal Reporting Data System (FRDS-IT) Data Entry Instructions
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document number: EPA 812-B-93-002
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 121
Date Signed: May 29,1998
MEMORANDUM
SUBJECT: Guidance on Federal Facility Penalty Order Authority
Under the Safe Drinking Water Act, as amended in 1996
FROM: Steven A. Herman
Assistant Administrator
TO: Addressees
On August 6,1996, the Safe Drinking Water Act (SDWA) Amendments of 1996, Pub. L.
No. 104-182 (the Amendments), became law. Prominent among the Amendments, are several
provisions uniquely applicable to federal entities. The new SDWA clarifies that Federal agencies
could be subject to a penalty order for a violation of an administrative order. This guidance
explains the Amendment's application to federal entities and offers advice to regions when
exercising the enhanced SDWA authorities. In brief, the Amendments:
• significantly enhanced the SDWA's pre-existing waiver of sovereign immunity,
• reiterated EPA's express enforcement authority over federal entities,
• streamlined the pre-existing statutory process for issuing public water system compliance
orders,
• expanded EPA's administrative penalty authority for any violation of the SDWA,
including the public water supply and underground injection control requirements
and requirements imposed by an administrative order,
• provided citizens the opportunity to obtain judicial review of penalty orders, and
• required states to use any penalty or fine collected from a federal entity under section
1447 for environmental purposes.
I. Summary of the Federal Facility Amendments
The Committee Report accompanying the Amendments provides information on what
Congress viewed as the purpose and need for the federal facility amendments. The Committee on
Commerce wrote:
The Federal Government owns or operates more than
4,200 public drinking water systems at military
bases, National parks and other Federal facilities.
The number of Federal systems cited for violations
increased from 830 in FY 1991 to 946 in 1994.
Federal agencies also own or operate facilities
in wellhead protection areas. These facilities-both
civilian and military-routinely generate, manage and
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dispose of large quantities of hazardous waste
containing acids, nitrates, solvents, radioactive
materials and heavy metals which can impact the
safety of drinking water supplies. The Committee's
efforts to ensure the compliance of Federal facilities
with various Federal environmental statutes extends
back several Congresses.
Section 202(a) adds a new section 1429.[sic]
to the Act to reaffirm in more explicit language the
original intent of Congress that each department,
agency, and instrumentality of the United States
be subject to all of the provisions of Federal,
State, interstate and local laws with respect to
drinking water and protection of wellhead
areas....
This waiver subjects the Federal government
to the full range of available enforcement tools,
including, but not limited to the mechanisms
specifically listed in the language of new section
1429, to penalize intermittent or continuing
violations as well as to coerce future compliance.
H. Rep. No. 104-632, Part 1,2nd Sess., reprinted in Cong. Rec. H6711 (1996) (Commerce
Committee Report) (emphasis added). The Committee's Report and the plain text of the
Amendments eliminate any doubt federal entities are subject to the full force and effect of the
SDWA.
The waiver of sovereign immunity to which the Committee Report refers became new
§1447(a), 42 U.S.C. §300j-6, replacing the SDWA's earlier waiver. Under the amended waiver,
all federal, state, interstate, and local substantive and procedural requirements, including all
administrative orders, respecting the protection of wellhead areas, respecting public water
systems, and respecting underground injection apply to each "department, agency and
instrumentality of the executive, legislative, and judicial branches" of the federal government
(federal entities) to the same extent as any person is subject to the requirements. Federal entities
subject to the requirements are those: 1) owning or operating any facility in a wellhead protection
area; 2) engaged in any activity at such facility resulting, or which may result, in the
contamination of water supplies in any such area; 3) owning or operating any public water
system; or 4) engaged in any activity resulting, or which may result in underground injection
which endangers drinking water.
Second, hi addition to strengthening the waiver of sovereign immunity, Congress also
added in §1447,42 U.S.C. §300j-6, a clear statement of EPA's administrative penalty authority
over federal entities. Section 1447 gives EPA authority to assess a civil penalty against a federal
entity in an amount not to exceed $25,000 per day per violation of an "applicable requirement
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under this subchapter...." Section 1447 (b)(l) and (b)(2), 42 U.S.C. §300j-6(b)(l) and (b)(2). The
"subchapter" to which this subsection refers includes the entire SDWA, including, as referenced
in the waiver, requirements of administrative orders. Thus, any schedule or requirement an
administrative order imposes would be an "applicable requirement," a violation of which could
provide grounds for a penalty order under §1447,42 U.S.C. §300j-6.' Section 1447(b), 42
U.S.C. §300j-6(b), requires EPA, before the penalty order becomes final, to provide the federal
entity with notice, an opportunity for a hearing and a conference with the Administrator.
Third, the Amendments streamlined the administrative procedures for issuing a
compliance order under §1414(g), 42 U.S.C. §300g-3(g). Under the amended section, which is
applicable to compliance orders issued to federal and private parties alike, EPA no longer is
required to provide the respondent with notice and an opportunity for a hearing before a
compliance order is final. However, Congress retained the SDWA's pre-Amendment
requirement that EPA give a state prior notice of an enforcement action.2 EPA also may issue
compliance orders against federal entities when requested by the Chief Executive Officer of the
state in which is located the public water system.
Fourth, the Amendments ensure that penalty orders EPA issues to a federal entity are
accountable to the public and the courts. Section 1447(b)(4)(A), 42 U.S.C. §300j-6(b)(4)(A),
provides any interested person may obtain judicial review in U.S. District Court of the penalty
orders issued under section 1447,42 U.S.C. §300j-6. As part of the review, the District Court
may impose additional civil penalties against the federal entity if the court finds that EPA's
penalty assessment constituted an abuse of discretion. The court must uphold the EPA penalty
order unless it finds that there is not substantial evidence in the record to support the finding of a
violation or that the assessment constitutes an abuse of discretion.
Finally, new section 1447(c), 42 U.S.C. §300j-6(c), requires states to use the penalties
and fines collected pursuant to §1447(b), 42 U.S.C. §300j-6(b), "only for projects designed to
improve or protect the environment or to defray the costs of environmental protection or
enforcement."3
II. Administrative Procedures for §1414(g), 42 U.S.C. §300g-3(g), Compliance Orders
Section 1414(g), 42 U.S.C. §300g-3(g), governs EPA's authority to issue SDWA public
water system compliance orders against private persons and federal entities, alike. Before the
Amendments, §1414(g) required EPA to provide notice and an opportunity for a public hearing
1 "Applicable requirements under this subchapter" also include requirements or permits
issued pursuant to an approved state program under section 1413,42 U.S.C §300g-2.
2 In a primacy state,§1414(a), 42 U.S.C.§300g-3(a), requires EPA to give the state 30 days to take action before
EPA may issue a compliance order under §1414(g), 42 U.S.C. §300g-3(g). In a nonprimacy state, §1414(a), 42
U.S.C. §300g-3(a), requires EPA to notify an appropriate local elected official with jurisdiction over the public
water system of the planned EPA enforcement action before taking the action.
3 Congress exempted from these use restrictions state laws in effect on the date of enactment of the Amendments
that would prohibit such a limitation on penalties collected and further exempted states from this limitation if the
state's constitution requires the funds to be used in a different manner. Section 1447(c), 42 U.S.C.§300j-6(c).
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WSG 121
before a compliance order could take effect. The amended section 1414(g) no longer requires
this process.
In general, compliance orders issued under §1414(g) to federal entities generally should
follow the same procedures governing issuance of a §1414(g) compliance order to a private
party. However, EPA believes that providing a federal agency respondent an opportunity to
confer with an appropriate regional official who has authority to issue the section 1414(g) order
is warranted even in the absence of a statutory provision requiring one. When giving the federal
entity the opportunity to confer, the regions may establish a time period in which the conference
must be requested or the opportunity is waived. Because §1414(g) order is issued to achieve
expeditious compliance with SDWA requirements and not to assess a penalty, the time period to
request a compliance order conference generally should be less than the 30 days afforded to seek
a conference for penalty orders. Ultimately, based on the seriousness of the violations and the
nature of the compliance activities, the regional office will determine the time period during
which the conference would be available. Once the order is final, the requirements of the order
become applicable requirements, subject to the penalty provisions of §1447(b).
HI. Administrative Procedures for §1431 Imminent and Substantial Endangerment
Orders
Section 1431,42 U.S.C. §300i, authorizes the Administrator to take any action she deems
necessary upon her "receipt of information that a contaminant which is present hi or is likely to
enter a public water system or an underground source of drinking water may present an imminent
and substantial endangerment to the health of persons..." Actions the Administrator may take
under this section include, but are not limited to, issuing orders to protect human health,
including orders to provide drinking water. Regions may issue an imminent and substantial
endangerment order either as part of a comprehensive order relying also on other SDWA
enforcement authorities, or as a separate order. For example, the region could issue a § 1431
order in conjunction with a compliance order pursuant to §1414(g), 42 U.S.C. §300g-3(g).4 As
with §1414(g) compliance orders, §1431 does not require EPA to offer the opportunity to confer
with the Administrator, or require EPA to provide notice and an opportunity for hearing, before
an imminent and substantial endangerment order becomes final. As discussed above for
§1414(g) compliance orders, however, when practicable based on the circumstances of the order,
the regions may offer the federal entity an opportunity to confer with an appropriate regional
official who has authority to issue the §1431 order before the order becomes final. The region
may determine based on the facts of the individual case whether it would be practicable to
provide an opportunity to confer and if so, the period of time in which the conference would be
available. Due to the nature of §1431 orders, any opportunity to confer may be limited.
As is the case for §1414 compliance orders, the terms of §1431 emergency orders become
"applicable requirements under the subchapter" for purposes of the administrative penalty order
4 For more information, see EPA's "Final Guidance on Emergency Authority Under Section 1431 of the Safe
Drinking Water Act," signed on September 27,1991 by James R. Elder, Director, Office of Ground Water and
Drinking Water and Frederick Stiehl, Enforcement Counsel, Office of Enforcement.
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WSG 121
authority granted the Administrator in §1447(b)(l). Accordingly, in the event the federal entity
fails to comply with an order issued under section 1431, EPA may issue a penalty order under
section 1447(b).5
IV. Administrative Procedures, including Opportunity to Confer with the
Administrator, for §1447(b), 42 U.S.C. §300j-6(b), Penalty Orders6
Under §1447(b)(l), 42 U.S.C. §300j-6(b)(l), EPA may assess a penalty for violation of an
"applicable requirement under this subchapter." Although EPA does not rely on a waiver of
sovereign immunity to enforce the provisions of the SDWA against a federal entity, the new
waiver clarifies the scope of section 1447(b)'s penalty provision. Section 1447(a) provides that
the "federal state, interstate, and local substantive and procedural requirements referred to in this
subsection include, but are not limited to, all administrative orders...." Thus, for example,
requirements imposed by administrative orders issued pursuant to sections 1414 (public water
system requirements), 1423 (protection of underground sources of water) and 1431 (emergency
powers) could form the basis for issuing a section 1447 penalty order. Additionally of course, a
violation of any statutorily mandated requirement could subject the federal entity to a section
1447 penalty order. For example, section 1445 requires, among several requirements,
monitoring and record keeping. A violation of this section would subject the federal entity to
penalties under section 1447(b).
In assessing penalties against a federal entity under section 1447,42 U.S.C. §300j-6,
EPA may evaluate the penalty based on the seriousness of the violations, the population at risk
and other appropriate factors. EPA would calculate the penalty amount in a manner consistent
with Agency policy and in the same manner it would calculate a penalty for a private person
capturing the economic benefit for avoidance of costs.7 In some cases it may be
appropriate to offer the federal entity the opportunity to negotiate a settlement of the penalty
action before the region formally files the complaint. Offering pre-filing settlement negotiations
of SDWA penalty actions is analogous to the pre-filing settlement negotiation opportunities the
Department of Justice provides before filing complaints in civil court.
Subsection 1447(b), 42 U.S.C. §300j-6(b), requires that before a penalty order becomes
final the Administrator provide the federal entity with notice and an opportunity for a formal
hearing on the record in accordance with the Administrative Procedures Act. 40 C.F.R. Part 22
5 As a matter of practice, EPA will seek penalties against a Federal agency which violates or fails or refuses to
comply with a §1431 order not to exceed $15,000 for each day in which such violation occurs or failure to comply
continues.
6 Note: settlement may be reached at any point in the administrative process. See section V for settlement
guidance.
7 Congress clarified in the Amendments' legislative history that any fine or penalty assessed is to be paid from an
entity's appropriations and not from the U.S. Judgement Fund. "This will assure the proper measure of
accountability for Federal entities and assist in deterring future violations of drinking water laws and regulation." H.
Rep. No. 104-632, Partt;12°d Sess., reprinted in Cong. Rec. H6711 (1996) (Commerce Committee Report).
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WSG121
sets forth EPA's general rules of administrative practice governing the assessment of
administrative penalties. If EPA issues an order and no settlement eventually is reached, the
head of the federal entity may request an opportunity to confer with the Administrator following
exhaustion of the Part 22 process.8
To initiate the Part 22 process, EPA files a complaint with the Regional Hearing Clerk.
40 C.F.R. §22.13. The respondent federal entity then may file an answer, in which it must
clearly admit, deny, or explain each factual allegation of the complaint, and it may request a
hearing. 40 C.F.R. §22.15. If the case proceeds to a hearing, a Presiding Officer is assigned to
hear and decide the case. Following the Presiding Officer's decision, Part 22 provides
opportunities for reopening the hearing or appealing the decision to the Environmental Appeals
Board. 40 C.F.R. §§22.28,22.30.
EPA will provide the federal entity with an'opportunity to confer with the Administrator
after the federal entity exhausts its Part 22 administrative process. This means that EPA will
provide the federal entity with the opportunity to confer with the Administrator after the matter
has been elevated to and decided by the Environmental Appeals Board. EPA will provide the
federal entity thirty days following the Environmental Appeals Board's order issued under §22.31
to request a conference, regardless if the entity petitions for reconsideration under §22.32. Under
section 22.32, motions to reconsider the Environmental Appeals Board's order must be filed
within ten days after service of the order. A motion for reconsideration will not toll the thirty-
day period EPA provides the federal entity to seek an opportunity to confer with the
Administrator. If no written request to confer is filed within the thirty-day period, the
administrative order is final under the terms of §1447(b)(3), 42 U.S.C. §300j-6(b)(3), of the
SDWA.
EPA may satisfy the opportunity to confer requirement by providing the federal entity an
opportunity to confer with a regional official with authority to issue the § 1447(b) order.
However, consistent with guidance issued under the FFCA9 and as a matter of general policy, the
head of the federal entity may confer with the Administrator, under the circumstances described
below.
The conference with the Adrninistrator can occur directly or through an exchange of
letters. A request for a direct conference should be served on the Administrator with a copy to
the Director of the Federal Facilities Enforcement Office (FFEO) and all parties/counsel of
record. The request for a direct conference should specifically identify the issues which the
federal entity proposes to discuss with the Administrator, and should specifically identify who
will represent the federal entity. In addition, as part of its request for a direct conference, the
head of the federal entity should attach copies of all prior administrative decisions and briefs in
8 The Administrator's obligation to provide an opportunity to confer is only in connection
with EPA-issued orders, not State orders. Therefore, EPA will not confer with federal entities regarding State-issued
orders.
9 See Memorandum from Steven A. Herman, Final Enforcement Guidance on Implementation of the Federal
Facility Compliance Act, July 6,1993.
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WSG 121
the underlying proceedings. Copies of the briefs and underlying decisions also should be
provided to the Director of FFEO.
The parties/counsel of record may request to be present during the direct conference.
This request to attend the direct conference, likewise, should be in writing and served on the
Director of FFEO and the parties/counsel of record. The Administrator or her designee shall
notify the head of the federal entity who requested the direct conference and the parties/counsel
of record regarding her plan and arrangements for the direct conference.
Following the conclusion of the direct conference, a person designated by the
Administrator will provide a written summary of the issues discussed and addressed. Copies of
the written summary will be provided to the parties/counsel of record. Ordinarily, within thirty
(30) days of the conference, or within thirty (30) days following the receipt of the letter from the
head of the federal entity hi the event of no direct conference, the Administrator shall issue a
written decision with appropriate instruction regarding the finality of the order. This decision
shall be filed with the Regional Hearing Clerk and made part of the administrative case file.
If the conference with the Administrator is conducted through an exchange of letters, the
head of the federal entity should serve a letter on the Administrator with a copy to the Director of
FFEO and all parties/counsel of record. In addition, the letter should specifically identify the
issues which the federal entity proposes that the Administrator consider. The head of the federal
entity should also attach copies of all prior administrative decisions and briefs in the underlying
proceedings. Copies of the briefs and underlying decisions also should be provided to the
Director of FFEO.
If the Environmental Appeals Board referred the matter to the Administrator for decision
under §22.04(a) rather than deciding the matter itself and if the federal entity wants to request a
conference with the Administrator, the federal entity must do so prior to the Administrator's
decision. To assure that federal entities are aware of these procedures, Regions should refer the
federal entity to Part 22 and other relevant Agency guidance.
V. Section 1447(b), 42 U.S.C. §300j-6(b), Penalty Order Settlements
The process for administrative settlements is set out at 40 C.F.R. §22.18. This provision
provides an opportunity for the respondent to confer with the complainant (an EPA employee
authorized to issue the complaint) concerning settlement regardless if the respondent requests a
hearing. Whenever a settlement or compromise has been proposed, the parties must forward a
written consent agreement and proposed order to the Regional Administrator and the
Environmental Appeals Board for EPA Headquarters-issued complaints. Throughout the
administrative process, the regions should follow Part 22's requirements regarding ex parte
communications.
Each settlement between EPA and a federal entity should include, in addition to the
provisions typically included in private party settlements, a waiver of the federal entity's
opportunity for a conference with the Administrator under §1447(b)(3), 42 U.S.C. §300j-6(b)(3).
Moreover, whenever EPA reaches a settlement that includes work to achieve compliance with
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WSG 121
the SDWA, stipulated penalties should be included in the settlement reached under section
1447(b) and 1414. In appropriate circumstances, EPA may use the May 8,1995 "Interim
Revised EPA Supplemental Enforcement Projects Policy" and future revisions to itto resolve
penalty enforcement actions under §1447,42 U.S.C. §300j-6.10
VI. Administrative Procedures for Administrative Orders under UIC Program
Section 1447 waives federal sovereign immunity and provides EPA express enforcement
authority, including UIC enforcement authority, over federal entities. Accordingly, the federal
government is subject to the requirements of the UIC provisions to the same extent as a private
party.
Under section 1423(c), 42 U.S.C. §300h-2(c), EPA may issue UIC compliance orders
after giving the person to whom it is directed written notice of the proposed order and an
opportunity to request a hearing on the order. The §1423 hearing is not subject to the
Administrative Procedures Act, but the process must provide a reasonable opportunity to be
heard and present evidence. Violation of a §1423 compliance order could subject the federal
entity to a penalty order under §1447."
Like §1414(g), 42 U.S.C. §300g-3(g), section 1423 does not require EPA to provide the
federal entity with an opportunity to confer on a compliance order. Based on the circumstances
of the case, however, EPA believes that providing an opportunity to confer with an appropriate
regional official who has authority to issue the §1423 order is warranted even in the absence of a
statutory provision requiring one. The time period to request a conference generally should be
less than that afforded to seek a conference for penalty orders. The regional office may
determine based on the seriousness of the violations and the nature of the compliance activities to
be undertaken the time period in which the federal entity may request a conference.
VII. Timing of Issuance of SDWA Administrative Order(s)
The EPA regional offices may determine, based on the facts of the particular enforcement
case, whether it is appropriate to issue a §1414,42 U.S.C. §300g-3, compliance order or a section
1447 penalty order, separately or in combination. Similarly, the region may issue a §1423 UIC
compliance order separately or in combination with a §1447 penalty order.
VIII. Press Releases for SDWA Enforcement Actions at Federal Facilities
It is the policy of EPA to use the publicity of enforcement activities as a key element of
the Agency's program to promote compliance and to deter noncompliance with environmental
10 The SEP policy also may be used to settle penalty actions, including actions brought under Section 1423,
42 U.S.C. section 300-h, (for violation of underground injection control program requirements).
11 As noted above, in assessing a penalty under section 1447(b), 42 U.S.C. § 300j-6(b), EPA regional offices
will calculate the penalty amount based on the seriousness of the violations, the population at risk and other
appropriate factors.
8
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WSG 121
laws and regulations. Publicizing EPA enforcement actions against private parties and Federal
agencies on an active and timely basis informs both the public and the regulated community of
EPA's efforts to ensure compliance and take enforcement actions. The issuance olpress releases
in appropriate circumstances can be a particularly effective tool for expediting timely compliance
at violating federal facilities. EPA's decision to issue a press release and the contents of press
releases are not negotiable with federal agencies or other regulated entities. We encourage the
regions to use press releases as one of the effective tools for enforcement under the SDWA.
IX. Conclusion
FFEO is issuing this guidance to clarify its expectations for federal facility enforcement
under the SDWA. This guidance supersedes earlier guidance regarding SDWA enforcement at
federal facilities such as that found in the 1988 Federal Facilities Compliance Strategy. Should
you have any questions or concerns, please call Mary Kay Lynch at (202) 564-2574, Sally
Dalzell at (202) 564-2583, or Jean Rice at (202) 564-2589.
X. Notice
This guidance and any internal procedures adopted for its implementation are intended
solely as guidance for employees of EPA. Such guidance and procedures do not constitute rule
making by the Agency and may not be relied upon to create a right or benefit, substantive or
procedural, enforceable at law or equity, by any person. The Agency may take action at variance
with this guidance and its internal implementing procedures.
Addressees:
Sylvia Lowrance
Michael Stahl
Director, FFEO
Director, Office of Regulatory Enforcement
Assistant Administrator, Water
Associate General Counsel, Water Division
Director, Office of Ground Water and Drinking Water
Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Water Program Managers, Regions I-X
Enforcement Coordinators, Regions I-X
PWSS Enforcement Coordinators, Regions 1-X
Drinking Water Program Representatives, Regions I-X
Federal Facility Leadership Council, Regions I-X
Federal Facility Coordinators, Regions I-X
ORC Federal Facility Workgoup
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG122
Date Signed: July 1998
Guidance on Implementing the Capacity Development Provisions of the Safe Drinking
Water Act Amendments of 1996
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
816-R-98-006
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 123
Date Signed: July 1998
Hypothetical State Programs for Ensuring that All New Community Water Systems and
Non-Transient Non-Community Water Systems Demonstrate Technical, Managerial, and
Financial Capacity
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#:
816-R-98-010
WRC#:
816/R-98-010
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG124
Date Signed: July 1998
Information for the Public on Participating with States in Preparing Capacity-
Development Strategies
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual.
Document numbers:
EPA#: . '
816-R-98-009
WRC #:
816/R-98-009
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 125
Date Signed: July 1998
Information for States on Implementing the Capacity Development Provisions of The Safe
Drinking Water Act Amendments of 1996
This guidance is too large to include in this manual. To obtain a copy of this guidance, see Index
5 of this manual. •
Document numbers:
EPA#:
816-R-98-008
WRC#:
816/R-98-008
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG 126
Date Signed: July 10,1998
MEMORANDUM
SUBJECT: Revised Safe Drinking Water Information System (SDWIS) Inventory Reporting
Requirements—Technical Guidance
FROM: Robert J. Blanco, Director
Implementation and Assistance Division
Office of Ground Water and Drinking Water
TO: Addressees
This memorandum provides your staff with the detailed technical guidance needed to
implement the changes to the SDWIS/FED reporting requirements. These changes result from
the data sharing process that was begun over three years ago to analyze EPA data needs and
existing reporting requirements. These changes were recommended by the Data Sharing
Committee (DSC) and received considerable state and regional input through this process. These
recommendations were also reviewed and concurred on in substance by the ASDWA/EPA Data
Management Steering Committee, which also has EPA regional and state representatives.
In April 1997 Cynthia Dougherty sent an early notice of new reporting requirements and
a fact sheet that summarized the tentative changes to the SDWIS inventory reporting
requirements. A copy of that memo is attached. The unresolved issue at that time was the
reporting of treatment data. The Executive Steering Committee requested the DSC to revisit the
cost data and to make its final recommendations based on the new data. Since that time new cost
data were obtained from states. Results were similar to the original figures. The DSC
formulated its final recommendations based on that new cost data and comments from its
committee, the states and ASDWA. This technical guidance document, therefore, contains some
new reporting requirements for treatment data.
The final report attached today provides the detailed technical guidance to implement the
additional reporting requirements discussed in the April 1997 notice. The reporting requirements
included in this guidance are the following:
• Owner Type code (added to Core Data Set)
• Service Area Characteristics (added to Core Data Set)
• Geographic Area Data (added to Core Data Set)
• Address Data (revised)
• Treatment Data (added to Core Data Set)
• Locational Data (added to Core Data Set)
• Other inventory information and Data Sharing Goals
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WSG 126
The Appendices include the following:
• A technical guidance to implement treatment data requirements (Appendix A)
• A technical guidance to implement locational data requirements, and the list of required
and recommended data elements, definitions and coding standards (Appendices B, C, and
°)
• A grand summary of current reporting requirements (Appendix E)
• An earlier memo on the definitions related to the types of water systems (Appendix F)
• List of SDWIS/FED contacts (Appendix G)
A fact sheet that summarizes the changes to the SDWIS inventory reporting requirements
and the schedule for reporting are also included with this document. Most data are due to be
submitted no later than January 1,2000. I believe that we have struck a balance between setting
realistic, but not overly burdensome requirements. Several of these reporting requirements will
improve the reporting of program functions and provide needed information to support
regulatory development and promote consistency across agency programs. In particular,
reporting of additional treatment data and the collection of locational coordinates will greatly
improve the understanding of source water protection and the use of spatial data within
SDWIS/FED.
Thank you to the members of the DSC, including those state, regional, and headquarters
members who gave so much of their valuable time to the discussions and participated in the
workgroup meetings.
I would appreciate any feedback on the utility of this format for conveying this technical
guidance to your staff. If you have any questions on these new reporting requirements, please
contact me at (202) 260-5525 or Jan Auerbach at (202) 260-5274. Your staff may wish to
contact Tom Poleck (Region 5) at (312) 886-2407 or Roger Anzzolin (HQ) at (202) 260-7282.
Attachments
Addressees: State Drinking Water Administrators
Regional Drinking Water Program Managers/Coordinators
Regional Drinking Water Enforcement Managers/Coordinators
cc: Data Sharing Committee
ASDWA/EPA Data Management Steering Committee
Cynthia Dougherty, OGWDW
Elizabeth Fellows, OGWDW
Jan Auerbach, OGWDW
Vanessa Leiby, ASDWA
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WSG 126
April 11,1997
MEMORANDUM -
SUBJECT: Early Notice on Revised Safe Drinking Water Information System (SDWIS)
Inventory Reporting Requirements
FROM: Cynthia Dougherty, Director
Office of Ground Water and Drinking Water
TO: Addressees
This memorandum provides an early notice regarding the changes to the SDWIS/FED
inventory reporting requirements. These changes resulted from the data sharing process that we
began over two years ago to analyze EPA data needs and existing reporting requirements. The
Protocol for Making Data Sharing Decisions (December, 1995) was followed; that protocol
provided for State and Regional input with adequate review periods. These recommendations
were also reviewed and concurred on in substance by the SDWIS Executive Steering Committee
and the ASDWA/EPA Data Management Steering Committee, both of which have EPA
Regional and State representatives.
The purpose of transmitting this information to you now is to provide an early notice of
tentative new reporting requirements. The final notice is planned to be sent later this summer,
once the complete technical guidance is developed and final decisions on reporting requirements
are made. A fact sheet that summarizes the tentative changes to the SDWIS inventory reporting
requirements is attached. Please feel free to use this information for planning purposes, but
recognize that the technical details and even the decisions on some specific requirements have
not been finalized.
The category of information which is still in question is treatment data. Our contractor is
currently preparing the complete technical guidance to implement the current recommendations.
Once this occurs, we will be able to more accurately judge the impacts of the recommended new
reporting and decide, with your input, whether the impacts are warranted. One possible
advantage to reporting more complete treatment data such as corrosion control treatment would
be to eliminate the need for reporting the milestone under the Lead and Copper Rule that this
treatment has been installed.
I recognize that, overall, these changes result in an increase in the amount of inventory
data that must be reported to SDWIS/FED. Much effort went into balancing the need for data at
the Federal level with setting realistic reporting requirements that are achievable and not overly
burdensome on States.
These new reporting requirements will better support our program functions by providing
information to support regulatory development, facilitate oversight, and promote consistency
across environmental media. In addition, our on-going review of existing reporting requirements
for the major drinking water rules will likely result in reduced reporting requirements, especially
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WSG 126
for rules like the Lead and Copper Rule. Where there are some definite cost and resource
impacts, such as for latitude/longitude data, phased-in implementation schedules have been set
that reduce annual cost and minimize the reporting burden. We request suggestions for how we
might be able to assist States with the collection and reporting of any of these data.
Thank you to everyone who participated in this effort, especially those States and
Regions that served directly on the Data Sharing Committee. Your efforts have helped us make
what I hope you agree are reasonable decisions on reporting requirements.
If you have any questions on these revised requirements, please contact me at 202-260-
5543, or Jan Auerbach at 202-260-5274. You may also wish to contact Tom Poleck, Chair of the
Data Sharing Committee, at 312-886-2407.
Addressees: State Drinking Water Administrators
Regional Drinking Water Program Managers/Coordinators
Regional Drinking Water Enforcement Managers/Coordinators
cc: Data Sharing Committee
Data Sharing Committee Advisory Group
ASDWA/EPA Data Management Steering Committee
Robert Blanco, OGWDW
Jan Auerbach, OGWDW
Vanessa Leiby, ASDWA
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WSG126
Safe Drinking Water Information System (SDWIS)
FACT SHEET
Revised Inventory Reporting Requirements June 1998
The reporting requirements as described in this fact sheet are the result of an extensive review of
the SDWIS inventory data needs and the current reporting requirements conducted by the
SDWIS Data Sharing Committee (DSC) and others. The changes to the current inventory
reporting requirements are presented below in general terms. The technical details and
implementation guidance are found in the technical guidance document, Revised Inventory
Reporting Requirements for the Safe Drinking Water Information System (SDWIS/FED)
Technical Guidance, June 26, 1998. A summary of the reporting requirements is also found in
Appendix E of this revised guidance.
The needed data, represented in SDWIS/FED as data attributes, are divided into two main
groups: Core Data Set attributes, and Data Sharing Goal attributes. Core Data Set attributes
represent the new reporting requirements and will be associated with state annual grant
allotments. These attributes were judged as the most essential to describe the drinking water
program at the national level and to support U.S. EPA's most basic program responsibilities.
Only Core Data Set attributes are discussed in this fact sheet. Data Sharing Goal attributes are
also needed by EPA to support important program functions and, where possible, should be
negotiated by each Region and State and reported to SDWIS/FED.
The following data will no longer be in the Core Data Set or counted toward grant eligibility
for FY 2001 and beyond. The grant figures for FY1999 and FY2000 will still use these
attributes so they must continue to be reported until March 1999.
• Season begin and end dates for noncommunity water systems
The reasons for discontinuing this requirement include: the lack of use for these data except for
performing grant calculations, and the perceived inaccuracy of the data due to reported dates that
meet the reporting requirement, but do not accurately reflect actual season begin and end dates.
The inventory reporting guidance is modified to reinforce the requirement to only report
inventory to SDWIS/FED that meets the Federal definition. Double-checking by EPA to see that
noncommunity water systems were opened for the required number of days is redundant and not
a convincingly justified use of the data.
The following requirement for address data is revised:
ADDRESS DATA The official address of a public water system represents the name and
mailing address of the responsible person (e.g., an owner or operator)
associated with the public water system.
> Address information is required for all water system types and should become part of a
state's routine updating or replacement of inventory data. The official address consists of
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WSG 126
the name of the water system, two address lines which are used to identify the responsible
person and the mailing street address, a city, state and zip code.
* If the latitude and longitude of any treatment plants are not reported, then an additional
physical address must also be reported for each plant.
The following new inventory data are being added to the Core Data Set:
GEOGRAPHIC AREA DATA Geographic area data include the city(s) and county(s)
served by the water system.
+ City and county served data are required for all water system types and should become
part of a state's routine updating or replacement of inventory data. County served or a
county equivalent, must be reported for all water systems. City served is only reported in
those cases where the water system serves a city or equivalent jurisdiction. Where
multiple cities or counties are served, all should be reported.
*• The city served is an alphanumeric value that represents a city, community or jurisdiction
that is being served by a public water system in whole or in part. The county served is a
code value that represents a county, or county equivalent, that is being served by a public
water system hi whole or in part.
OWNER TYPE CODE A code that indicates the owner type (e.g., Federal, private, Native
American, etc.) for each water system is to be reported. This used
to be a grant-eligibility data element but was removed from the list
a few years ago. Owner type code is required for all water system
types and should become part of a state's routine updating or
replacement of inventory data.
SERVICE AREA CHARACTERISTICS A code that represents the primary type of area (e.g.,
schools, day care centers, mobile home parks, etc.)
being served by a water system hi whole or in part
is to reported. This used to be a grant-eligibility
data element but was removed from the list a few
years ago. Service Area Characteristic codes are
required for all water system types and should
become part of a state's routine updating or
replacement of inventory data.
LATITUDE & LONGITUDE DATA The latitude/longitude coordinates and the six
required method, accuracy and description (MAD)
codes under the EPA Locational Data Policy (LDP)
are to be reported for all active sources of water
(surface water intakes and wellheads). The
guidance lists as a Data Sharing Goal the reporting
of locational data of the water treatment plant(s).
The LDP also recommends eight (8) optional
elements to be collected.
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WSG 126
TREATMENT DATA . As part of the SDWIS/FED inventory Core Data Set, the following
treatment data are required to be reported:
a. All treatment data (treatment objectives and processes) for all sources of water;
b. All water sources that are untreated;
c. Any new and innovative treatment combination or process;
d. Treatment status by the seller of purchased water; and the
e. Linkage between sources of water and treatment plants.
Treatment information is required for all water system types and should become part of a state's
routine updating or replacement of inventory data.
Implementation Schedule
Except for latitude/longitude data and treatment data, all new requirements will become effective
on January 1,2000. For latitude/longitude data and treatment data, all data for community water
systems are due by January 1,2000. For latitude/longitude and treatment data for non-transient,
non-community water systems, 20% of the data are due by January 1,2001 and 20% more per
year until January 1,2005. For treatment data, all transient noncommunity water systems are due
by January 1,2005. Reporting of lat/long data for transient noncommunity water systems is not
in the Core Data Set, but is a Data Sharing Goal. Where possible, reporting for transient systems
is encouraged.
SDWIS/FED is being modified to accept all of the new requirements. As these new capabilities
go into production, the states ajid regions will be notified as to the earliest date that certain data
can be reported to SDWIS/FED, As of today, the following data can be reported to
SDWIS/FED:
owner type codes
service area characteristics
geographic areas
address data
some of the required water system facility data (i.e. all required basic facility inventory
elements, treatment objective and process codes, latitude and longitude coordinates
reported as degrees, minutes and seconds).
The reporting of latitude/longitude data should be possible by the end of this year or in early
1999. The reporting of treatment linkages and the other new treatment codes will be available
soon after the locational data processing is available.
Until these new requirements become effective, the current reporting requirements must, at a
minimum, continue to be reported.
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WSG 126
Revised Inventory Reporting Requirements for the Safe Drinking Water Information
System (SDWIS/FED)—Technical Guidance
This guidance is too large to include in this manual. To obtain a copy of this guidance, see
Index 5 of this manual.
Document numbers:
EPA#:
816-R-98-007
NCEPI #:
8167F-98-007
WRC#:.....
816/F-98-007
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 127
Date Signed: August 5,1998
Federal Register/Vol. 63, No. ISO/Wednesday, August 5,1998/Notices pp. Page 41939-41946
Part VI: Environmental Protection Agency, SDWA Section 1401(4) Public Water System
Definition as Amended by 1996 SDWA Amendments; Notice.
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-6136-7]
Definition of a Public Water System in
SDWA Section 1401(4) as Amended by the
1996 SDWA Amendments
AGENCY: Environmental Protection
Agency.
ACTION: Notice.
SUMMARY: The U.S. Environmental
Protection Agency (EPA) is announcing
issuance of guidance on "Definition of a
Public Water System in SDWA Section
1401(4) as Amended by the 1996 SDWA
Amendments." The guidance is published as
an Appendix to this notice.
FOR FURTHER INFORMATION
CONTACT: The Safe Drinking Water
Hotline, toll free (800) 4264791, or Jon
Merkle, telephone (415) 744-1844.
SUPPLEMENTARY INFORMATION:
Background
The definition of a "'public water system"
(PWS) is central to delineating the scope of
many Safe Drinking Water Act (SDWA)
requirements. The 1996 amendments to the
SDWA broadened the definition of "public
water system" to include systems providing
water for human consumption that deliver
this water by "constructed conveyances",
such as irrigation canals. Prior to the 1996
amendments, the SDWA defined the term
public water system to include only piped
water systems. The guidance published today
is intended to interpret the new statutory
language and provide guidance on this
interpretation and suggested implementation
to EPA Regions and States with primary
enforcement responsibility for the PWS
program.
The Agency published a draft of this
guidance in the Federal Register on May 8,
1998. The Agency solicited comments on the
draft guidance and, after consideration of
numerous comments on the draft guidance,
the Agency prepared the final guidance
which is being published today. EPA has
prepared a detailed response to comment
document, which is available upon request
and which will be posted on EPA's Office of
Ground Water and Drinking Water
Homepage, which can be accessed at
www.epa.gov/ogwdw.
Dated: July 31,1998.
J. Charles Fox,
Acting Assistant Administrator for Water.
Appendix-Definition of a Public Water
System in SDWA Section 1401(4) as
Amended by the 1996 SDWA
Amendments
Table of Contents
Introduction
Background
Application of Section 1401(4)
I. Systems Newly Defined As Public Water
Systems
A. Statutory Language
B. Interpretation of "Constructed Conveyance*
C. Identification of Public Water Systems Under
the Revised Definition
n. The Exclusions in Section 1401(4X8X0
A. Statutory Language
B. Application of Section 1401(4X8X9
1. The "Other Than Residential Uses" Exclusion
2. The Alternative Water and Treatment
Exclusions
The Alternative Water Exclusion
The treatment Exclusion
III. The Exclusion in Section !401(4XBXii) for
Certain Piped Irrigation Districts
Questions & Answers
Disclaimer
Introduction
This document provides guidance to the
primacy agencies' and the U.S.
Environmental Protection Agency's (EPA's)
regional offices in their implementation of
the Safe Drinking Water Acfs (SDWA) 1996
amendments to the definition of a public
water system (Section 1401(4)).
This document incorporates and replaces
the preliminary guidance on this topic issued
December 6,1996, by Assistant
Administrator for Water Robert Perciasepe
entitled "Safe Drinking Water Act
Amendment to Public Water System
Definition." It is a collaborative effort
1 Primacy agency refen to other the EPA or the Stile or
the Tribe in cam when dw Sate or Tribe exercises primary
enforcement responsibility for the public water systems.
between the Office of Water and the Office
of Enforcement and Compliance Assurance
(OECA). OECA has concurred with the
contents of this document and will
incorporate and implement it through its
enforcement and compliance assurance
directives and operating protocols.
Background
The term public water system (PWS) is
central to delineating the scope of many
SDWA requirements. Prior to the 1996
SDWA amendments, Section 1401 of the
SDWA defined a public water system as "a
system for the provision to the public of
piped water for human consumption if such
system has at least fifteen service
connections or regularly serves at least
twenty-five individuals." In Imperial
Irrigation District v. United States
Environmental Protection Agency, 4 F.3d
774 (9th Cir. 1993), the court ruled that the
SDWA provisions governing PWSs did not
apply to an irrigation district supplying
residences, schools and businesses with
untreated water through open canals. In
response, Congress changed the definition of
public water system to regulate under the
SDWA "water [provided] for human
consumption through pipes or other
constructed conveyances." This change
reflected Congress' understanding that the
human consumption of such untreated canal
water could constitute a significant risk to
public health, and that appropriate measures
were warranted to provide consumers of this
water with a level of health protection
equivalent to that from drinking water
standards. At the same time. Congress
provided several means by which certain
water suppliers could be excluded from this
definition, and provided that systems newly
subject to SDWA regulation under this
amended definition would not be regulated
until August 6,1998.
The amended Section 1401(4) does
several things. First, effective August 6,
1998, Section 1401(4)(A) expanded the
definition of a PWS to include suppliers of
water for human consumption that deliver
their water through canals and other
constructed conveyances. Second, Section
!40l(4)(B)(i) supplies methods by which
connections to these newly defined PWSs
will not be considered "connections" if the
systems or users at these connections have
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WSG 127
taken specific actions to ensure protection of
public health. If, after the systems or users
have taken these specific actions to ensure
protection of public health, and as a
consequence of such actions, the systems are
no longer regarded as serving at least IS
service connections or 25 individuals, the
systems will not be considered to be PWSs.
Third, Section 1401(4)(B)(ii) also allows
certain piped irrigation districts to no longer
be considered public water systems if the
districts or their users take specific actions to
ensure public health.
As promised in the December 6,1996
guidance, EPA convened an EPA- State
work group to develop more detail on the
interpretation and application of this new
definition. State members of this work group
included drinking water program
representatives for Arizona, California,
Georgia, Idaho, Texas and Washington. The
work group consulted with thirteen
individual irrigation water suppliers and
irrigation trade associations within these
States. The workgroup also consulted with
six organizations involved with
community-based minority health and
welfare issues and interviewed three persons
who use canal water for human
consumption. EPA published a draft of the
guidance on May 8,1998 (see 63 FR
25740-46), considered public comments on
the draft, and made changes based on the
public comments.
Application of Section 1401(4)
/. Systems Newly Defined as Public Water
Systems
A. Statutory Language
As described above, effective August 6,
1998, Section 1401(4)(A) of the SOW A2
expanded the definition of a PWS to read as
follows:
The term public water system means a system
for the provision to the public of water for human
consumption through pipes or other constructed
conveyances, if such system has at least fifteen
service connections or regularly serves at least
twenty-five individuals. Such term includes
(i) any collection, treatment, storage and
distribution facilities under control of the operator
of such system and used primarily in connection
with such system, and
(ii) any collection or pretreatment storage
facilities not under such control which are used
primarily in connection with such system.
This revised definition broadens the
means for delivering water that will qualify a
'All references in this Guidance to Section 1401 refer to
Section 1401 of the SDWA.
water supplier* as being a public water
system from pipes to "pipes or other
constructed conveyances." Thus, as of
August 6,1998, in accordance with this
provision and EPA's regulations, water
systems providing water for human
consumption through constructed
conveyances to at least fifteen service
connections or an average of twenty-five
individuals daily at least 60 days per year are
defined as public water systems subject to
SDWA regulation. See 40 CFR Sec. 141.2.
- EPA has interpreted the term human
consumption to include drinking, bathing,4
showering, cooking, dishwashing, and
maintaining oral hygiene, and this
interpretation has been upheld by the courts.
See United States v. Midway Heights County
Water District, 695 F. Supp. 1072,1074
(E.D. Cal. 1988) (" Midway Heights^.
Under the final rule published in the
Federal Register on April 28,1998 (63 FR
23362, at 23367), states were given two
years from the date of publication to adopt
the new statutory definition of public water
system quoted above, or a more stringent
definition, in order to obtain or maintain
primacy.
B. Interpretation of "Constructed
Conveyance"
As of August 6,1998, systems that deliver
water for human consumption through
constructed conveyances other than pipes to
the requisite number of connections and/or
individuals are defined as PWSs subject to
SDWA regulation. The term constructed
conveyance is not limited by the SDWA as
to the size of the conveyance or the character
of the delivery system. The term refers
broadly to any manmade conduit such as
ditches, culverts, waterways, flumes, mine
drains or canals. The term constructed
conveyance does not include water that is
delivered by bottle, other package unit,
vending machine or cooler, nor does it
include water that is trucked or delivered by
a similar vehicle.9
'As used in this Guidance, and as indicated in Section
140I(4XC), the term water supplier broadly refers to any
water provider that may be subject to regulation as a public
water system under the SDWA. This term should not be
confined with supplier of water, which is defined in the
SDWA as'' any person who owns or operates a public water
system-. See SDWA Section 1401(7)
'EPA interprets the term "bathing" to mean use of water
for personal hygiene purposes in a home, business setting,
school, etc. The term "bathing" does not refer to situations
such as (1) swimming in an open canal or (2) incidental.
casual contact with water from an open canal in connection
with outdoor activities such as agricultural work, canal
maintenance, or lawn and garden care.
*0ne or more of these water delivery methods may under
certain circumstances be considered public water systems
under ousting interpretations of other parts of the definition
of • public water system.
Water bodies or waterways that occur
naturally but which are altered by humans
may, in some cases, be constructed
conveyances. Whether a particular water
body or waterway is a constructed
conveyance for purposes of Section 1401(4)
depends on the totality of facts that
characterize whether the water body or
waterway is essentially a natural water body
or waterway, or whether it is essentially a
manmade conduit The primacy agency
should use the following factors to decide
whether a particular water body is a
constructed conveyance. Specifically, the
primacy agency should first decide whether a
water body is manmade, or "constructed,"
by determining whether or not it exists in its
current configuration substantially from
human modification where activities such as
mining, dredging, channelization, or bed or
bank modification are of an appropriate
magnitude to change the character of the
water body. Second, the primacy agency
should determine whether the water body is a
conduit, or "conveyance," by examining
who owns or controls the water and the
reason why water is present: whether it is
present perennially through natural
precipitation and runoff or discharge of
natural springs, or whether its flow is present
primarily by human means and in order to
convey the water to users as part of a
network under the management of the water
supplier. If a particular water body is both
"constructed" and a "conveyance" based on
the factors described above, at least as to
particular users whose status as
"connections" is in question, the water body
is a constructed conveyance.
Primacy agencies should also determine
whether to consider as part of a public water
system, those natural waterway portions of a
water delivery system composed in part of
constructed conveyances. .
While irrigation-related entities and their
canals are likely to be the most common
systems newly defined as PWSs under the
expanded definition in Section 1401(4),
mining and other industrial entities that
convey water may also fit within the
definition if their water is used for human
consumption.
C. Identification of Public Water Systems
Under the Revised Definition
Primacy agencies should examine their
areas of jurisdiction to determine if there are
any water suppliers providing water through
constructed conveyances for human
consumption that meet the new public water
system definition.
The addition of "constructed
conveyances" to the definition of a public
water system presents new questions about
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how to apply two key, existing components
of the definition to water suppliers using
constructed conveyances. A detailed
discussion of these two components is
provided below.
Providing Water. The first component is
whether the supplier is "providing" water
within the meaning of Section 1401(4). New
questions about this component arise
because use of water from open conveyances
may be less apparent than from piped
systems. Thus, it is important to clarify those
conditions under which a supplier of water
through constructed conveyances would be
considered to have "provided" certain users
with water.
In describing a public water system, EPA's
regulations and guidance use such terms as
"serves" and "delivers"-often though not
always in the context of "customers" (see,
e.g., 40 CFR Sec. 141.2). For the supplier to
be providing water to users, there must be an
explicit or implied arrangement or agreement
of some kind between a supplier and
individuals using water. A contractual,
operating or service arrangement is the most
obvious example of an explicit agreement or
arrangement to provide water.
Where the existence of an explicit
arrangement or agreement is not obvious
from the facts, the primacy agency should
decide whether or not there is an implicit
arrangement or agreement based on two
factors: whether the supplier knows or
should know that the water is being taken,
and whether the supplier has consented to it
being taken. A supplier that takes actions
that a property owner would ordinarily take
to maintain his or her property rights against
unauthorized diversions should be able to
demonstrate that there is no implied
arrangement or agreement to "provide"
water. A supplier would not be expected to
go beyond its normal inspections or
operation of water conveyances to discover
unauthorized diversions, or to do more than
those actions typically used to maintain
rights against the adverse possession of
interlopers to show lack of consent
Human Consumption. The second key .
component of the definition, which is
distinct from the component as to whether a
supplier is "providing" water, is whether
water is being used for "human
consumption." Whether a water system is
supplying water through constructed
conveyances to a connection for human
consumption should be determined by
whether the water supplier knows or should
know that users at that connection are using
the supplier's water for human consumption.
In Midway Heights, the court held that the
county water district either knew or should
have known to a substantial certainty that
individuals were using the district's water for
human consumption based on the locations
and arrangements of the pipes and plumbing,
the fact that a pipe ran from the system into a
number of homes, and a specific provision in
an agreement between the water district and
the users instructing the users to make the
water potable before using it for human
consumption. The court further found that a
"waiver" agreement between the water
district and the users that purported to limit
the use of the district's water to irrigation
was ineffective to remove the water system's
-liability under the SDWA. Likewise, EPA
does not consider a waiver signed by water
users stating that they must not use or are not
using water for human consumption to
preclude the water supplier from being
considered a PWS when the system knows or
should know that it is supplying water for
human consumption to at least fifteen
connections or an average of twenty-five
regularly served individuals.
In order for water suppliers to ascertain
whether they may be defined as PWSs under
the revised definition, the suppliers should
undertake reasonable actions within their
authority to ascertain their users' water use
patterns (e.g., surveys of any water users that
might be using the water for human
consumption). Water suppliers that make
reasonable efforts to identify which of their
users are using their water for human
consumption will have identified all users for
human consumption that they "should
know" to exist, in accordance with the
Midway Heights standard. While water
suppliers should take the initiative to assess
and characterize their water use situations to
the primacy agency as a core element of such
surveys, such suppliers can also offer their
users the opportunity to describe their water
use situations to the supplier. Suppliers
should determine from users that might be
using their water for human consumption
whether the water they supply is currently
used for any of the human consumptive uses
outlined above, i.e., drinking, bathing,
showering, cooking, dishwashing, or
maintaining oral hygiene, and, if so, which
such uses. Suppliers should also document
whether additional or alternative sources of
water are used for human consumption, e.g.,
whether a private well, bottled water, or
hauled water is used, and for what purposes
these additional sources of water are used.
Suppliers should determine and document
whether the users are connected to a central
treatment plant or use a point-of-entry
device. Some suppliers have already
performed surveys to gather information
regarding their users' water use patterns.
In addition to undertaking a survey or
other reasonable actions to document water
use patterns, water suppliers need to consider
other available information that indicates
that their users are in fact using the water for
human consumption. As stated above, where
a water supplier knows-or should know that
the requisite number of connections and/or
. individuals are using water it supplies for
human consumption, the primacy State or
EPA will consider the system to be a PWS.
The results of any survey and other available
information should provide a basis for
ascertaining whether a water supplier has at
least fifteen service connections or regularly
serves at least twenty-five individuals and
would therefore be considered a PWS. EPA
or the primacy State may wish to request
documented evidence of the suppliers'
reasonable efforts to ascertain these water
uses. A supplier's failure to make a
reasonable effort to gather any necessary
information and provide sufficient
documentation will not excuse the supplier
from liability under the SDWA.
Primacy agencies should determine what
form of records they will need from water
suppliers to implement this provision. In
addition to surveys, primacy agencies may
want to consider requiring suppliers to
submit annual affidavits documenting such
information as the number of connections
and users to whom they serve water, the uses
of that water, and whether alternative water
is supplied. Primacy agencies should also
determine how often they will need updated
records and how suppliers should maintain
these records (e.g., schedule, location,
availability).
Pursuant to its regular oversight
responsibilities, EPA can review State
determinations of whether a system is a
PWS. If EPA has serious concerns with the
result of a State's determination, it will
discuss these matters with the State
regarding a potential reconsideration of the
determination. In the event EPA cannot
resolve the matter with the State, SDWA
Section 1414 continues to authorize EPA to
bring an enforcement action against a system
which EPA believes is a PWS.
Under amended Section 1401(4), if a
water supplier provides water for human
consumption through constructed
conveyances other than pipes to at least
twenty-five individuals or fifteen
connections at any time on or after August 6,
1998, the supplier is considered a PWS.
Such a supplier may avoid regulation as a
PWS only if it qualifies for the exclusions
provided in Section 1401(4)(B)(i) and
thereby reduces its "connections" to fewer
than fifteen connections regularly serving
fewer than twenty-five individuals.
Information gathered in suppliers' surveys
will aid the suppliers in deciding whether
they may qualify for or should apply to the
primacy agency for these exclusions, and in
documenting their case for any such
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exclusions. The exclusions are described in
detail in Section II below.
//. The Exclusions in Section 1401(4)(B)(i)
A. Statutory Language
Section 1401(4)(B)(i) provides limited
exclusions to the "connection" component of
the PWS definition to systems that del iver .
water through constructed conveyances other
than pipes. These exclusions are not
available to piped water systems, with the
exception of certain piped irrigation districts
described in Section 1401(4)(B)(ii) and
discussed in Section III, below.
Specifically, Section 1401(4)(B)(i)
provides that a connection to a system that
delivers water through constructed
conveyances other than pipes is excluded
from consideration as a "connection" for
purposes of Section 1401(4)(A) under three
circumstances:
(1) Where the water is used exclusively for
purposes other than residential uses
(consisting of drinking, bathing, and
cooking, or other similar uses);
(2) where EPA or the State (where the
State has primary enforcement responsibility
for PWSs) determines that alternative water
to achieve the equivalent level of public
health protection provided by the applicable
national primary drinking water regulations
is provided for drinking and cooking;
(3) where EPA or the State (where the
State has primary enforcement responsibility
for PWSs) determines that the water
provided for drinking, cooking, and bathing
is treated (centrally or by 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.
If the application of one or more of these
exclusions reduces the "connections" of a
system providing water for human
consumption (through constructed
conveyances other than pipes) to fewer than
fifteen service connections that serve fewer
than twenty-five individuals, the supplier's.
water system is not a PWS regulated under
the SDWA.'
However, if the supplier's remaining
connections number fifteen or more, or if its
remaining connections (even if they number
fewer than fifteen) regularly serve at least
twenty-five individuals, then the system is a
PWS, although the excluded connections are
not considered part of the PWS for as long as
the exclusions apply and the system complies
with any conditions governing their
applicability.
The three exclusions above do not otherwise affect the
nuiuier in which primacy agencies have defined a connection
for the purposes of the SOW A.
B. Application of Section 1401(4)(B)(i)
1. The "Other Than Residential Uses"
Exclusion. If water provided by a water
supplier to a particular connection is used
exclusively for purposes other than
residential uses, consisting of drinking,
bathing, and cooking, or similar uses,
Section 1401(4)(B)(i)(I) applies to that
connection. An example of where this
exclusion would apply is when a user obtains
all water for drinking, bathing, cooking, and
-similar uses from a private well, while the
supplier provides the user with water for
toilet flushing and/or outside irrigation.
While this provision is referred to in this
guidance document as one of three
exclusions, it does not contain the primacy
agency determination process that the other
exclusions contain. This provision simply
clarifies that where water being provided to a
certain connection is not being used "for
human consumption," that connection is not
counted as a connection for purposes of the
definition of a PWS in Section 1401(4).
2. The Alternative Water and Treatment
Exclusions. In contrast to the "other than
residential uses" exclusion described above,
the "alternative water" and "alternative
treatment" exclusions enable the primacy
agency to determine that a water supplier
that does meet the definition of a PWS is
providing adequate health protection through
the means specified in Section
1401(4)(B)(i)(lI) or OH), and thus should not
be regulated as a PWS.
The alternative water and alternative
treatment exclusions apply only after the
primacy agency has made the determination
that the supplier complies with the exclusion
criteria. If the primacy agency provides the
supplier with a written determination that the
exclusions in Sections 1401(4)(B)(i)(II) and
(III) apply, then an eligible water supplier
can reasonably rely on those exclusions, as
long as they continue to be maintained in
practice, to avoid classification as a PWS
subject to the SDWA or to continue to
provide users of "excluded connections"
with water for human consumption that does
not comply with the SDWA requirements
applicable to PWSs. Suppliers seeking to
exclude connections under Section
1401(4)(B)(i)(lI) and/or (III) are responsible
for ensuring that the primacy agency has
sufficient information and documentation to
demonstrate compliance with the exclusion
criteria prior to the primacy agency's making
a
determination.
The Alternative Water Exclusion. A water
supplier seeking to exclude a particular
connection pursuant to Section
1401(4)(B)(i)(II) must demonstrate to the
primacy agency that it is providing users at
that connection with water for drinking and
cooking from another source such as bottled
water or hauled water. To qualify for this
exclusion the supplier must provide the water
to the users, at a reasonable location, not
merely make.it available. Whether the
alternative water provided by the supplier is
being provided at a reasonable location, such
as on the user's doorstep or at the property
line, will be determined by the primacy
agency on a case-by-case basis. The supplier
must demonstrate that it is actually providing
to the users a minimum amount of water
adequate to meet the users' drinking and
cooking needs. The statute does not require
the supplier to provide alternative water to
meet the users' bathing needs. The exclusion
does not apply to a connection where the
users, not the supplier, provide alternative
water for drinking and cooking. Under the
SDWA, public water systems, rather than
users, are responsible for providing safe
drinking water absent an explicit statutory
provision to the contrary (as in the
alternative treatment exclusion, discussed
below).
The primacy agency must also make the
factual determination that the alternative
water provided for drinking and cooking
actually achieves the equivalent level of
public health protection provided by
applicable NPDWRs.7 The primacy agency
will make this determination based on its
own criteria regarding which alternative
water sources, and which associated
documentation, operational, monitoring,
reporting or other requirements, achieve the
equivalent level of public health protection
provided by applicable NPDWRs. The
primacy agency should not necessarily
assume that all varieties of bottled or hauled
water will achieve the requisite level of
public health protection absent information
about the source and quality of the water.
Where existing State regulations governing
bottled and/or hauled water provide the
equivalent level of public health protection
provided by applicable NPDWRs, an
alternative water purveyor's compliance with
such regulations would provide adequate
assurance that the alternative water actually
achieves the requisite level of public health
protection.
The water supplier may charge the users
for the cost of the water supplied. The water
supplier may also contract with a third party
to deliver the water to the user, but in such
case the supplier remains responsible for
ensuring that the alternative water is
provided to the users.
'Applicable national primary drinking water regulations
means the NPDWRs that would apply to the water supplier if
all it> connections excluded pursuant to the alternative water
and treatment exclusions were counted as connections.
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The Treatment Exclusion. A water .
supplier seeking to exclude a particular
connection pursuant to Section
1401(4)(B)(i)(III) must demonstrate to the
primacy agency that the water that it supplies
for drinking, cooking and bathing at that
connection is centrally treated or treated at
the point of entry by the provider, a
pass-through entity, or the user. A
pass-through entity is an entity other than a
water supplier referred to in Section
1401(4)(B) or its users that has been
contractually engaged by the water supplier
or the user to provide the treatment described
in Section 1401(4)(B)(i)(IlI). The primacy
agency should request that the supplier
submit information and documentation
demonstrating that central treatment or a
point-of-entry treatment device is actually in
use and treating all water used for drinking,
cooking and bathing at that connection.
The primacy agency must also make the
factual determination that the treated water
actually achieves the equivalent level of
public health protection provided by the
applicable NPDWRs.' The primacy agency.
will make this determination based on its
own criteria, which can include appropriate,
independent third party (such as the National
Sanitation Foundation) certification or
performance verification, regarding which
types of treatment devices may be used, and
which associated operational, monitoring,
reporting or other requirements are
necessary, to ensure that the provided water
actually achieves the equivalent level of
public health protection provided by
applicable NPDWRs. This third party
verification generally describes a range of
contamination levels in the raw (untreated)
water that the treatment device can
effectively address. Where local variability
of source water conditions indicates a
need-as where the raw water is highly
contaminated-primacy agencies could
choose to require more site-specific pilot
testing. National third party performance
verification will still be helpful in such cases
as a guide to the water quality parameters
(levels of contamination) that will (or will.
not) present problems for technology
performance with the type of contaminant
and treatment process involved. EPA's listing
of point-of- entry compliance technologies
may also be helpful, as the listings may
include a statement of certain limitations on
the use of a specific technology for
compliance that can focus primacy agencies'
attention on key performance parameters.
The words "equivalent level of public
health protection" are meant to distinguish
the situation of providers covered by this
section from the situation of public water
'See footnote 7.
systems which must comply with all relevant
aspects of the applicable regulations,
including sampling and testing requirements
and sometimes details of treatment For
example, a point-of-entry treatment device
for filtration and disinfection might not
comply with all requirements of relevant
drinking water rules for monitoring, extent of
surveillance of the disinfection process, and
so forth. But, it would meet the "equivalent
level of public health protection" requirement
of this section if the quality of the water it
-produces is similar to that from central
filtration and disinfection. Thus, this
requirement is a performance standard
providing that the quality of the water that
affected residential users get should be
similar to that from central treatment
As stated in Section 1401(4)(B)(i)(III),
treatment may be provided by the water
supplier seeking to qualify for the exclusion,
by a pass- through entity, or by the user. As
the alternative treatment provision explicitly
states that the user may provide the
treatment, the supplier may choose but is not
required to put the treatment in place,
operate it or contract for these services itself.
However, because the exclusion cannot be
granted unless the treatment actually
provides an equivalent level of public health
protection, as a practical matter the supplier
is responsible for ensuring that the
alternative treatment is in place and remains
effective to enable the primacy agency to
make the necessary determination. For
example, where users have already put
alternative treatment in place and a supplier
desires to continue this approach (that is,
desires not to be involved itself in providing
the alternative treatment), the supplier must
provide adequate information to the primacy
agency regarding the nature of the alternative
treatment devices in place, including the
level of health protection provided by these
devices, and the existence of users'
maintenance contracts that will ensure
continued attainment of the required level of
health protection.
///. The Exclusion in Section 140l(4)(B)(ii)
for Certain Piped Irrigation Districts
All piped water systems providing water
for human consumption to at least fifteen
service connections or twenty-five regularly
served individuals were defined as PWSs
subject to SDWA regulation prior to the
1996 amendments. The amendments,
however, provide a new exclusion for a
specified group of these PWSs. Section
1401(4)(BXii) provides:
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 shall not be
considered to be a public water system if the
system or the residential or similar users of the
system comply with subclause (II) or (111) of clause
(0-
The exclusion provisions for qualifying
piped irrigation districts were effective
immediately upon passage of the 1996
amendments, in contrast with the expanded
definition of public water system in Section
1401(4) as applied to constructed
conveyance systems, which became effective
on August 6,1998.
An irrigation district referred to in Section
I401(4)(B)(ii) that would otherwise be
defined as a PWS because it provides water
for human consumption to at least fifteen
connections or twenty-five regularly served
individuals may avoid regulation as a PWS
only if the primacy agency determines that
all connections to the district that use the
district's water for human consumption
comply with subclause (II) or (III) of Section
1401(4)(B)(i). In contrast to systems
providing water through constructed
conveyances, these districts cannot avoid
regulation as a PWS by simply "reducing
connections" to fewer than fifteen
connections serving fewer than twenty-five
individuals by application of the exclusions
in subclauses (II) and (III).
Only those irrigation districts that existed
prior to May 18,1994, and which provide
primarily agricultural service through piped
water systems with only incidental
residential or similar use, are eligible to
apply for these exclusions. The agricultural
exclusion is available for commercial
agriculture only. Incidental residential or
similar use refers to human consumptive
uses that are closely and functionally related
to the primary agricultural service provided
by the irrigation district. For example, the
use of water for human consumption by the
residents of a farmhouse working on
agricultural property, from a connection used
primarily for irrigation of that property, is
incidental to the primarily agricultural use of
the water. Similarly, human consumptive use
by farmworkers residing on agricultural
property is incidental to the primary
agricultural service provided to that property
by the district. In contrast, the use of water
for human consumption from a connection to
an irrigation district's pipe by a cluster of
homes in a subdivision is not "incidental" to
the district's primary agricultural service. If
the character of the irrigation district's
service changes so that the district no longer
provides primarily commercial agricultural
service with only incidental residential or
similar use, the district would no longer
qualify for this exclusion.
As with constructed conveyances, EPA
and the primacy States should recognize that
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irrigation districts that make a serious effort
to comply with the exclusions may
nonetheless have a few users who refuse to
cooperate.
Questions & Answers
Ql: How can primacy agencies identify
water suppliers that may be newly defined as
public water systems under the revised
definition of public water system in Section
1401(4)?
Al: Primacy agencies will likely benefit by
tapping into the knowledge base of their
inspectors, following-up on citizen water
quality complaints in irrigation and mining
areas and developing inventories of irrigation
and other constructed conveyance water
suppliers. State agriculture departments,
.. mining regulatory agencies and water
resource departments can help develop these
inventories. EPA recommends that the
primacy agency send a letter to possible new
PWSs informing them of the requirements of
the 1996 amendments, the systems' potential
SDWA responsibilities, and the systems'
responsibility to determine whether and to
how many of their users they are providing
water for human consumption. EPA further
recommends that primacy agencies suggest
that the suppliers undertake reasonable
actions (e.g., surveys of water users that
might be using the water for human
consumption) to ascertain their users' water
use patterns. Primacy agencies may wish to
request that water suppliers providing water
through constructed conveyances other than
pipes provide them with annual, affirmative
documentation such as affidavits or other
certifications identifying the connections and
users to whom they serve water, and
identifying the connections and users using
their water for human consumption and
residential uses. This would be a means for
primacy agencies to verify suppliers'
documentation of the number of connections
using their water for human consumption.
Q2: Because most water suppliers cannot
inspect the interiors of their users' premises,
on What evidence should the suppliers
reasonably base their conclusions about a
user's water use?
A2: A survey of users by the supplier that
includes affirmative documentation as to the
types of uses made of the water would be
sufficient in most cases. However, when
other evidence is available to the supplier,
such as the lack of potable ground water in
the area, empty water bottles awaiting
pick-up, observations by company personnel,
or patterns of water use at that connection,
and such evidence indicates that human
consumption of the water provided by the
supplier is probable, such a survey should
not be treated as conclusive.
Q3: Some water suppliers have warned
their users that their water is nonpotable or is
not for human consumption without
treatment Some have offered the water for
sale only on the condition that it will not be
used for human consumption. Other
suppliers have required their users to sign
statements that the water will not be used for
human consumption or that the supplier is
not liable (and the user assumes the risks) if
the water is used domestically. If,
nevertheless, a user uses water for human
"consumption in the face of these or similar
conditions, must the water supplier count the
user as a connection for the purposes of
Section 1401(4)?
A3: Yes, in cases where the water supplier
is delivering water that the suppliers knows
or should know is being used for human
consumption.
Q4: Where a water supplier provides water
for human consumption through pipes or
other constructed conveyances, does the
geographic isolation of that water supplier's
users affect whether such users are counted
as connections or individuals served by the
supplier?
A4: No. All water users to whom the water
supplier provides water for human
consumption are counted as connections or
individuals served by the supplier regardless
of their geographic isolation from other
users, unless such connections are otherwise
excluded pursuant to Section 1401(4)(B).
Q5: Are the exclusions in Section
1401(4)(B)(i) available to a water supplier
that operates a system that consists primarily
of non- piped constructed conveyances, but
which includes some limited "piping" such
as siphons to pass under roads or washes,
short tunnels through hills, etc.?
AS: Yes, assuming the exclusion criteria
apply. Only those suppliers that convey
water by means other than pipes, and which
are newly defined as public water systems
under the expanded definition in Section
1401(4)(A), may use the exclusions available
under Section 1401(4)(B)(i) to avoid
regulation as a public water system.
Suppliers whose piping consists only of the
limited piping described above are not
considered to convey water by pipes. A
primacy agency should not make a
determination that a supplier is a piped water
system, either as to specific connections or
entirely, if it would not have been able to do
so under SDWA prior to the changes enacted
to Section 1401(4). It should be noted that
Section 1401(4)(B)(ii) provides a separate
exclusion to a specified group of piped
irrigation districts, as discussed in Section III
above.
Q6: If a water supplier delivers water for
human consumption through a constructed
conveyance other than a pipe and reduces its
number of countable connections through the
operation of 1401(4)(B)(i) to IS connections
using water for human consumption does it
have to supply SDWA-complying water only
to these IS connections or to all of its
connections?
A6: The water supplier is under an
obligation to supply SDWA- complying
water only to the 15 connections.
Ql: Is 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 to at least fifteen service
connections or twenty-five regularly served
individuals considered to be a public water
system if only some of its connections for
human consumption are provided with
alternative water or alternative treatment in
accordance with subclause (II) or (III) of
clause (i)?
AT. Yes. All connections to this kind of
public water system using the water for
human consumption must comply with
subclause (II) or (III) of clause (i) before the
supplier will not be considered a public
water system.
Q8: Is the irrigation district described in
Question 7 above under an obligation to
comply fully with SDWA with regard to just
the connections for human consumption that
are not provided with alternative water or
alternative treatment or to all of its
connections using water for human
consumption?
A3: The water supplier must comply fully
with SDWA with regard to all of the
connections to the public water system using
water for human consumption.
Q9: What financial options are available
to water suppliers that were newly defined as v.
PWSs as of August 6,1998 under the
expanded definition of PWS in Section
1401(4) and to suppliers that wish to make
use of the exclusions in Section 1401(4)(B)?
A9: There are various financial options
available to those water suppliers. First,
public water systems are eligible for
Drinking Water State Revolving Fund
loans—with subsidies available to
disadvantaged communities. Even those
water suppliers that wish to exclude
connections through use of point-of-entry
treatment or central treatment pursuant to
Section 1401(4)(B)(i)(III) are eligible for
these loans to provide such treatment In
addition, some communities known as
"colonias" may be eligible for assistance
through federal grants to border States
intended to provide assistance to such
communities to facilitate compliance with
SDWA requirements, although such grant
funding has not previously been appropriated
for this purpose. Finally, water suppliers
providing alternative treatment have all the
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WSG 127
financial options regarding amortization and
charging costs to users they would have for
any other capital investment
Disclaimer
This document provides guidance to EPA
Regions and States exercising primary
enforcement responsibility under the SDWA
concerning how EPA interprets the amended.
definition of public water system under the
SDWA. It also provides guidance to the
public and the regulated community on how
EPA intends to exercise its discretion in
implementing the statute'and regulations
defining public water system. The guidance
is designed to implement national policy on
these issues. The document does not,
however, substitute for the SDWA or EPA's
regulations, nor is it a regulation itself. Thus,
it cannot impose legally-binding
requirements on EPA, States, or the
regulated community, and may not apply to a
particular situation based upon the
circumstances. EPA and State
decisionmakers retain the discretion to adopt
approaches that differ from this guidance on
a case-by-case basis where appropriate. EPA
may change this guidance in the future.
(Authority 42 U.S.C. Sec. 300f(4))
[FR Doc. 98-20904 Filed 8-4-98; 8:45 am]
BILLING CODE 6560-50-P
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 128
Date Signed: August 11,1998
MEMORANDUM
SUBJECT:
FROM:
TO:
Policy on Cutoff Dates for Submitting Data to SDWIS/FED
Robert J. Blanco, Director
Implementation and Assistance Division (4606)
Office of Ground Water and Drinking Water
Brian J. Maas, Director
Water Enforcement Division (2243 A)
Office of Enforcement
Elliott J. Gilberg, Director
Chemical, Commercial Services and Municipal Division (2224A)
Office of Compliance
Frederick F. Stiehl, Director
Enforcement Planning, Targeting, and Data Division (2222A)
Office of Compliance
Regional Water Division Directors
Regional Enforcement Division Directors
We are using SDWIS/FED data more and more for internal purposes and for public right-
to-know. For example, once the SNC/Exceptions Tracking System and its reports are fully
operational, OECA will be using these reports as the source of quarterly and annual reports on
enforcement performance, including resolution of SNCs and exceptions. The first National
Annual Compliance Report used SDWIS/FED data to prepare summary tables of state data. Data
need to be timely and accurate to support rulemaking, and targeting and analysis activities, and
should be consistent wherever they are used.
Data are not currently either consistent or timely. The grant eligibility schedule includes
a draft report from SDWIS/FED around December 20 each year and a final report about thirty
days later. Data for measuring GPRA progress (i.e., core performance measures) and for
populating the Index of Watershed Indicators and the internet page for the Center for
Environmental Information and Statistics are as of April 1,1998. Data are transferred to
Envirofacts at the beginning of each quarter. For the 1996 [calendar year] Annual Compliance
Report, OECA used data from SDWIS as of January 1,1998 for comparison to state data. The
1997 report will use SDWIS data as of July 1,1998.
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WSG 128
After consultation with your branch chiefs, we have settled on a single period of time as
the lag time after which SDWIS/FED data become "official" for reporting purposes". That lag
time is 90 days. A 90-day period is consistent with the "official" period of time we give states
and regions to upload data to SDWIS/FED. Currently, states have 45 days to get the data to the
region, the region has 15 days to get the data to HQ, and states and regions have 30 days to
review the data and make corrections before the data become official. Some regions have chosen
to give states 60 days and have the states transfer the data directly to SDWIS. While.this
schedule is our official policy, we appear to honor it in the breach more than in fact, as evidenced
by the previous examples.
There is no technical reason that states can't get data in and corrected in 90 days;
SDWIS/FED allows entry and correction (even for states which totally replace their data every
quarter) within the 90 days. Error reports are getting smaller and documentation will be getting
easier to use. Quality assurance manuals will be available in several months which will assist
states and regions hi improving data quality. Thus, now is a good time to reestablish the
importance of entering and correcting data on time. States which argue that they cannot meet
these dates are typically ones which either do not give high priority to data management and/or
which have split organizational responsibility for data entry and data management. Giving states
a longer period of tune to enter data does not solve that problem and gives the message that
timely entry of quality data (i.e., data used for decision purposes) is not of value to EPA.
Commencing October 1,1998, we will establish 90 days as the lag time before data
become official. EPA will use data from SDWIS/FED for its official reports, analyses, and
public disclosure as of January 1,1999. States will be able to enter changes to data after 90 days.
Those changes will affect individual records but will not affect aggregate reporting.
The National Annual Compliance Report and discussions with USA Today reporters have
raised our awareness of the problems with the quality and timeliness of SDWIS/FED data. We
have pledged through the recommendations in that report to work more closely with the states to
improve the quality of the data on which an evaluation of the success of the national drinking
water program must rest. Please help us implement this recommendation by conveying to your
states the importance of quality and timely data and working with them to achieve mat goal.
cc: Regional Branch Chiefs
Regional Enforcement Coordinators
Headquarters Branch Chiefs
Cynthia Dougherty
Elizabeth Fellows
Elaine Stanley
Eric Schaeffer
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 129
Date Signed: September 24,1998
MEMORANDUM
SUBJECT: Enforcement and Implementation of Section 1417 of
the Safe Drinking Water Act
FROM: Brian J. Maas, Director
Water Enforcement Division
Office of Regulatory Enforcement
Robert J. Blanco, Director
Implementation and Assistance Division
Office of Ground Water and Drinking Water
TO: . Water Division Directors, Regions I-X
Regional Counsels, Regions I-X
Enforcement Division Directors, Regions I, II, VI, and VIII
The office of Enforcement and Compliance Assurance and the Office of Water have
received many questions from Regional staff, the States and industry representatives relating to
the interpretation and enforcement of section 1417 of the Safe Drinking Water Act ("SDWA").
This memorandum provides the Agency's answers to questions relating to this section. OECA
and OW have worked closely with the Office of General Counsel, which concurs in this
memorandum.
I. Background
The lead ban provisions contained in section 1417 of the SDWA were enacted by
Congress to address the problem of lead contamination of drinking water that is caused by
materials used in public water distribution systems, plumbing of private residences and water
coolers used at schools and businesses. Lead causes adverse developmental effects hi children.
(slows cognitive development) and hypertension in adults. It is also a probable human
carcinogen. Congress recognized that the principal source of lead in drinking water is the
plumbing (services lines, pipes, fittings and coolers) that carries and stores water between the
water main and the tap. S. Rep. No. 169,104th Cong., 1st Sess. 94 (1995).
The 1986 Amendments to the SDWA included a ban on the use of pipe, solder and flux
that are not lead free in public water supplies and residential and nonresidential plumbing
intended to provide water for human consumption that are connected to public water systems.
The 1996 Amendments extended this ban to include plumbing fittings and fixtures, which
include faucets, and to apply to any facility providing water for human consumption, even if not
connected to a public water system. The 1996 Amendments also defined "lead free" for fittings
1
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WSG 129
and fixtures to include compliance with any standard established under section 1417(e). EPA
recognized the establishment of such a voluntary standard in the consensus standard developed
by the NSF International, NSF 61, section 9. See 62 Fed. Reg. 44684-44685, August 22,1997.
A copy of this Federal Register notice is attached as Attachment "A." Those products
specifically listed in NSF 61, Section 9 are required to meet the NSF Standard as well as the
maximum 8.0 percent lead content requirement in section 1417(d)(2) of the SDWA. The
products subject to NSF 61, Section 9 include kitchen and bar faucets lavatory faucets, water
dispensers, drinking fountains, water coolers, glass fillers, residential refrigerator ice makers,
supply stops and endpoint control valves.
Besides expanding the ban on the use of lead materials in public water systems, the 1996
Amendments to the SDWA banned the introduction into commerce of any pipe, or any pipe or
plumbing fittings and fixtures, that are not lead free, after August 6,1998, except for pipe used in
manufacturing or industrial processes. The 1996 Amendments also added a prohibition on the
sale of solder or flux containing lead at businesses engaged in selling plumbing supplies and a
prohibition on the introduction into commerce of any lead solder or flux, unless the solder or flux
is labeled to prohibit use in plumbing providing water for human consumption. The Agency
interprets "introduce into commerce" as used in section 1417 of the SDWA to cover not only the
initial offering of products for sale but also the sale or distribution from an inventory of products.
Thus, retailers or wholesalers cannot sell those products which would violate section 1417(a)(3).
This prohibition did not go into effect until two years after the 1996 Amendments, giving
retailers and wholesalers a two year grace period. (See the EPA memorandum dated December
10,1996 attached hereto as Attachment "B.")
II Enforcement of Section 1417
Regions and industry groups have asked for clarification of State enforcement
responsibilities under section 1417 and EPA's jurisdiction to bring civil or administrative actions
to address violations of the lead ban. The following questions and answers summarize these
issues.
A. Can U.S. EPA Enforce Section 1417 of SDWA?
Under section 1414(b)&(g) of the SDWA, EPA may bring a civil action or issue an order
to require compliance with section 1417 of the SDWA, including section 1417(a)(3). Prior to
1996, section 1414(b) of the Act stated that EPA could issue orders or bring a civil action to
"require compliance with a national primary drinking water regulation." As a result, it was
unclear whether EPA could take enforcement actions for significant violations of the SDWA
other than violations of national primary drinking water regulations or exemptions or variances
from such regulations.
The 1996 Amendments to the SDWA, however, amended the SDWA to clarify EPA's
authority to enforce "any applicable requirement," of the Act, which includes the requirements of
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WSG 129
section 1417. See 1414(b) and (i). The legislative history indicates that the amendment was
intended to clarify EPA's enforcement authority for "enforcement actionfs] for some significant
violations, such as a violation of the prohibition against the sale of leaded water fixtures." S.
Rep. No. 169,104th Cong., 1st Sess. 80-81 (1995).
Section 1414(b) specifically authorizes the Administrator to bring a civil action to require
compliance with any applicable requirement of the SDWA and seek civil penalties of not more
than $25,000 for each day of violation (now increased to $27,500 per day pursuant to the Debt
Collection Improvement Act of 1996).1 Section 1414(g) authorizes the Administrator to require
compliance with any applicable requirement and seek civil penalties through an administrative
order. Accordingly, sections 1414(b)&(g) provide EPA with authority to enforce all the
provisions of section 1417, including section 1417(a)(3), against any person, including entities
other than public water systems.
B. Which provisions in section 1417 are States required to Implement?
Section 1417(b) requires States to enforce section 1417(a)(l), which prohibits the use of
non-lead-free products in the installation or repair of public water systems or of any plumbing in
a residential or nonresidential facility providing water for human consumption. As specified in
section 1417(b)(l), State enforcement would be through State or local plumbing codes, or such
other means of enforcement as the State may determine to be appropriate. The definition of "lead
free" appears in section 1417(d), and includes compliance withNSF Standard 61, Section 9, a
voluntary standard adopted in accordance with the 1996 Amendments to SDWA. Therefore,
States must enforce use restrictions in section 1417(a)(l), including NSF 61, Section 9 or face
the prospect of withholding grant funds.
EPA encourages the States to develop independent State enforcement authority or use the
citizen suit provisions within section 1449 of SDWA to enforce section 1417(a)(3). Section
1449 of the Safe Drinking Water Act authorizes suits by "any person," which is defined in
section 1401 to include a State. Therefore, section 1449 is a mechanism available to the States
and citizens to enforce section 1417(a)(3). Enforcement of section 1417(a)(3) would
complement implementation of the lead drinking water regulations, ensuring that the States will
have a comprehensive State program to effectively address lead contamination in the drinking
water supply. Enforcement of these provisions should be used to supplement enforcement of
'Where the Agency is contemplating bringing an enforcement action against a public
water system for violating section 1417, the Agency must comply with certain procedural
requirements, which differ depending on whether the system is located in a State with primacy.
See §1414(b) (requiring that the Agency only bring an enforcement action against a public water
system after having followed the procedures specified either in section 1414(a)(l) or (2) or
1414(b)(2)). These procedural requirements would not apply where the Agency is bringing an
enforcement action against an alleged violator that is not a public water system.
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WSG129
sections 1417(a)(l) and the lead and copper rule. Through State enforcement of section
1417(a)(3), the States and EPA will move closer to our common goal of protecting public health
from lead contamination in the nation's drinking water. EPA envisions that primary
responsibility for enforcement of section 1417 will reside with the States.
Ill Businesses prohibited under section 1417 (a) (3) (B) from selling solder and flux that
are not lead free
Effective August 6,1998, section 1417(a)(3)(B) of the SDWA prohibits:
any person engaged in the business of selling plumbing supplies, except
manufacturers, to sell solder or flux that is not lead free
For the purpose of solder and flux, lead free is defined under section 1417(d)(2) as solder and
flux containing not more than 0.2 percent lead.
The Agency interprets "engaged in the business of selling plumbing supplies" as used in
section 1417(a)(3)(B) to apply to any person who is primarily engaged in selling plumbing
supplies intended for use in facilities providing water for human consumption.2 Businesses
subject to this prohibition include, but are not limited to, plumbing retail stores, plumbing
contractors, plumbers and specialty stores selling primarily plumbing fixtures and fittings.
Wholesalers, including retailers who may act as wholesalers, cannot sell solder or flux that is not
lead free to retailers, contractors, or others that are primarily engaged in the plumbing supply
business. However, wholesalers and retailers may sell solder or flux that is not lead free to
electrical, suppliers or other retail businesses or contractors that are not primarily engaged in the
plumbing supply business.
Retail stores that are primarily engaged in the business of selling general building .
materials or general retail goods, which may also sell plumbing supplies, are not, in EPA's view,
subject to the prohibition in section 1417(a)(3)(B), except when acting as a wholesaler selling to
businesses primarily engaged in selling plumbing supplies. General hardware stores and large
retail home centers may sell solder or flux that is not lead free, provided the solder or flux is
clearly labeled with a statement that it is prohibited to use the lead solder or flux in the
installation or repair of any plumbing providing water for human consumption. The sale, by any
person or business, of solder or flux that is not lead free and is not properly labeled is prohibited
under section 1417 (a) (3) (c) of the SDWA.
2 The terms "Plumbing" and "Plumbers" as used in this memorandum are limited to
products and those persons providing services relating to plumbing intended to provide water for
human consumption.
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WSG129
Enforcement of the lead ban provisions is imperative to our efforts to protect children's
health and provide safe drinking water to the citizens of our country. EPA Headquarters is
committed to support Regional and State enforcement activities relating to the lead ban or any
other drinking water requirement. Please do not hesitate to contact Richard Alonso, OECA
(202/564-6048), Judith Fraser, OGWDW (202/260-0941) or Steven Neugeboren, OGC (202/260-
6596) if you have any questions about this memorandum.
Attachments
cc: Susan Lepow, OGC
Joel Gross, DOJ
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WSG 129
Attachment "A"
Federal Register/Vol. 62, No. 163/Friday, August 22,1997/Notices pp. 44684-44685
Environmental Protection Agency, Interpretation of New Drinking Water Requirements Relating
to Lead Free Plumbing Fittings and Fixtures; Notice
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-5880-2]
Interpretation of New Drinking Water
Requirements Relating to Lead Free Pluming
Fittings and Fixtures
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice
SUMMARY: Section 1417(a)(3) of the Safe
Drinking Water Act (SDWA), as amended
makes it unlawful for any person to
introduce into commerce after August 6,
1998 any pipe, or any pipe or plumbing
fitting or fixture that is not lead free. In
section 1417(e) as added by the 1996 SDWA
Amendments, Congress directed EPA to
provide assistance for the development of
voluntary standards and testing protocols for
the leaching of lead from new plumbing
fittings and fixtures relating to drinking
water. This notice confirms EPA's position
that performance standards for the leaching
of lead from new plumbing fittings and
fixtures have been established, as directed by
the SDWA.
The SDWA requires that, if a voluntary
standard for the leaching of lead from new
plumbing fittings and fixtures is not
established by August 1997, then EPA must
promulgate regulations setting a performance
based standard for lead leaching from such
components. The National Sanitation
Foundation (NSF) established a voluntary
standard, NSF Standard 61, section 9,
governing the leaching of lead from new
plumbing fittings and fixtures in September
1994. EPA participated in the development
of the NSF Standard because the Agency felt
that, rather than promulgating a regulation,
limiting the amount of lead leaching from
brass and other alloys into drinking water
would be best achieved through a voluntary
standard, which is fully protective on a
health basis and technologically achievable
by industry in a reasonable period of time. In
the Agency's view, NSF Standard 61, section
9 satisfies the requirement of section
1417(e), that a voluntary standard be
established. Thus, the obligation to issue
regulations is not triggered. See S. Rep.
" 104-169 "104th Cong.), at 95." Copies of
NSF Standard 61, and the listings of
products meeting this standard may be
obtained from NSF International, 3475
Plymouth Road, PO Box 130140, Ann
Arbor, MI 48113-0140. The telephone
number is 313-769-8010.
FOR FURTHER INFORMATION
CONTACT: Peter Lassovszky, Office of
Ground Water and Drinking Water (4607),
U.S. Environmental Protection Agency, 401
M Street, SW., Washington, DC. For further
information, call the U.S. EPA Safe Drinking
Water Hotline between 8:30 am and 5 pm
Eastern Time, Monday through Friday
excluding Federal holidays, by telephoning
toll-free 1-800-426-4791 nationwide.
Dated: August 13,1997.
Robert Perciasepe,
Assistant Administrator, Office of Water.
[FR Doc. 97-22360 Filed 8-21-97; 8:45 am]
BILLING CODE 6560-50-P
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WSG 129
Attachment "B"
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC. 10,1996
OFFICE OF WATER
Mr. Craig W. Selover
.Vice President - Engineering
Delta Faucet Company
55 East 111th Street
P.O. Box 40980
Indianapolis, IN 42680
Dear Mr. Selover:
This is in response to your letter dated October 11,1996, which posed two questions
related to lead problems associated with pipes and plumbing fixtures.
First, you requested that the Environmental Protection Agency (EPA) clarity the
requirements in Section 1417(a)(3) of the Safe Drinking Water Act (SDWA) , as amended,
which makes it unlawful for any person to introduce into commerce any pipe, or any pipe or
pluming fitting or fixture that is not lead free after August 6,1998. You indicated that your
interpretation of the phrase "introduce into commerce" means the time when the manufacturer
first offers a product for sale into the distribution system. In your view, this interpretation would
prevent discontinuity in the distribution channels, where the bulk of the products pass through
and into installation fairly quickly, but many slow moving items remain in the wholesalers'
inventories for years.
The Agency interprets Section 1417(a)(3) to mean that no one, including the
manufacturer or the distributor, may distribute any pipe or plumbing fitting or fixture that is not
lead free after the August 6,1998 deadline. The statute makes no distinction between wholesale
or retail sales of these materials. Thus, we believe this provision covers not only initial offering
of products for sale but sale or distribution from an inventory of the products referred to in
Section 1417(a)(3) after August 6,1998, except for manufacturing or industrial processes.
Allowing the sale of inventoried, non lead-free materials several years after the statutory deadline
would not be in compliance with Section 1417(a)(3). The two year grace period provided by the
law allows the industry time to phase in this requirement while preventing discontinuity in the
distribution channels.
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WSG129
In you second request, you asked that the EPA formally recognize National Sanitation
Foundation (NSF) Standard 61, Section 9 as a standard which meets the requirements of the
SDWA. You indicated that, although there may be other standards developed in the future, NSF
Standard 61, Section 9 is the only one which has been developed to date. In further support of
your request, you note that EPA played an instrumental role hi the consensus process that
developed the standard.
EPA participated in the development of the NSF Standard because the Agency felt that
limiting the amount of lead leaching from brass and other alloys into drinking water would best
be achieved through a voluntary standard, which is fully protective on a health basis and
technologically achievable by industry hi a reasonable period of time. In amending the SDWA
requirements, Congress directed EPA hi Section 1417(e) to provide assistance for the
development of voluntary standards and testing protocols for the leaching of lead from new
plumbing fittings and fixtures related to drinking water. In the Agency's view NSF Standard 61,
Section 9 meets the requirement of Section 1417(e).
I hope this information adequately responds to your questions. If you have any further
questions regarding this matter, please contact me at (202)260-5543.
Sincerely,
Original Signed by
Cynthia C. Dougherty
Director
Office of Ground Water and Drinking Water
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 130
Date Signed: October 1,1998
Analytical Methods Home Page on the Internet
The internet has become a valuable outreach tool for various government agencies providing a
wealth of important information to the general public. As part of these outreach efforts, the U.S.
EPA's Office of Ground Water and Drinking Water (OGWDW) has had an active web page for
several years which can be accessed at www.epa.gov/OGWDW. Within this web site, an entirely
new section has recently been completed pertaining to analytical methods for drinking water.
This section was constructed primarily for the analytical laboratory community and was designed
to be a simple and organized reference source for various information related to analytical
methods for drinking water. This new section identifies which analytical methods have been
promulgated as approved methods for compliance monitoring, where individuals can obtain these
methods, and who within the EPA can provide technical assistance specific to drinking water
analytical methods if a technical problem or question exists. Background information pertaining
to analytical methods for drinking water is also presented. This additional information consists
of current Agency policies, ongoing scientific studies and links to other pages related to
analytical methods. To find the site, go to the main OGWDW web page
(www.epa.gov/OGWDW) and click on "Drinking Water Standards Program". Under
"Regulatory Infrastructure" click on the link labeled "Analytical Methods".
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WSG 131-140
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WSG 131 is outdated and has been deleted.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 132
Date Signed: March 23,1999
MEMORANDUM
SUBJECT: Safeguarding Latitude/Longitude Data in SDWIS/FED Database
FROM: Janet L. Auerbach, Chief
Information Management Branch
TO: Regional Branch Chiefs,
Office of Ground Water and Drinking Water
EPA Regions I - X
The purpose of this memorandum is to provide you with information about recent
Agency safeguards concerning access and/or receipt of latitude/longitude data maintained in
information management systems. Utilities have raised concerns to OGWDW about national
security implications of making information in SDWIS/FED on the exact location of source
water intakes readily available on the Internet. The Agency's critical infrastructure plan also
identifies this area as one of concern. OGWDW has responded to these concerns by
implementing the policy discussed below.
To ensure that SDWIS/FED latitude/longitude data is kept safeguarded, we have taken
the following measures:
Access to Latitude/longitude Table in SDWIS/FED
1. Before your staff authorizes access, they should request and receive justification for why
access is needed (See attached "OGWDW Latitude/Longitude Application Form" currently being
used by OGWDW). When you send the requestor the application form, please also send the
attached paragraph explaining the sensitivity of the information. The application form may be
modified for your regional ADP Coordinator's use and record keeping. Please be aware that my
staff will grant access for only 30 days.
Any justification which the requestor submits will be accepted. The procedure is
intended to educate the user to the sensitivity of the information and limit impromptu access
rather than establish a subjective approval process.
NOTE: This procedure does not apply to Federal, State and OGWDW Contractor Support
Personnel. These persons have automatically been given unlimited access.
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WSG132
Dissemination of Latitude/longitude Data in SDWIS/FED
1. Requests for latitude/longitude data under the Freedom of Information Act (FOIA), need to
follow the same procedures. Please send an interim response asking requesters to provide
justification for why data is needed.
2. EPA will not put latitude/longitude data on Envirofacts or any other web site.
As part of the process, we are asking the regions to follow the same security procedures
listed above. Therefore, please pass this memorandum to the ADP Coordinators, the
SDWIS/FED Coordinators within your region and other persons handling FOIA requests.
With much effort on the parts of both the program, regional and The National Computer
Center, I believe we have taken positive steps to prevent data vulnerabilities. I ask for your full
support in implementing these actions that are necessary to safeguard drinking water intakes
around the country.
If you have any questions regarding these initiatives, I may be reached on (202) 260-5274
or contact Towana Dorsey on (202) 260-2805.
Attachments
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WSG 132
Attachment 1
CAUTION
This is a United States Environmental Protection Agency (U.S. EPA) computer system,
and the information contained in it may be accessed and used for official Government business
or by use of authorized persons. You have been given specific authorization to receive
latitude/longitude information contained in this database. Unauthorized access or use of
latitude/longitude information may subject violators to criminal, civil and/or administrative
action. You may not share these data with users who have not received their own authorization
to use it
Latitude/longitude data are sensitive and must be used with extreme care. Please
aggregate or generalize data wherever possible. Please avoid making public specific locational
information.
Your password is good for 30 days beginning (insert today's date). You will need to re-
apply at least 2 weeks prior to the lapse date if you wish access after 30 days from (today's date).
You will not receive notice that your password is about to lapse.
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WSG 132
Latitude/Longitude Application Form
This form is a request to the ADP Coordinator, Office of Ground Water
and Drinking Water for Obtaining Drinking Water Facility
Latitude/Longitude Information from the Safe Drinking Water
Information System (SDWIS/FED).
DATE:
NAME:
ORGANIZATION:
PHONE NUMBER:
FAX NUMBER:
E-MAIL ADDRESSi
Please provide justification for why you need access to water facility
latitude/longitude data maintained in the SDWIS/FED Database.
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WSG 132
Please submit form to:
Attention: Towana J. Dorsey
ADP Coordinator, OGWDW
MC: 4606
Telephone: (202) 260-2805
Fax: (202)401-3041
Internet: dQrsey.towana@epamail.epa.gov
Access Granted:
Towana J. Dorsey, ADP Coordinator, OGWDW
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 133
Date Signed: February 17,1999
MEMORANDUM -
SUBJECT: Approval of Data Sharing Committee Recommendations for Lead and Copper
FROM: Janet L. Auerbach, Chief
Information Management Branch
Implementation and Assistance Division (4606)
Office of Ground Water and Drinking Water
TO: Data Sharing Committee Members
Regional Drinking Water Branch Chiefs
For your information, enclosed is Cynthia Dougherty's approval of the Data Sharing
Committee recommendations for revisions to the Lead and Copper Rule reporting guidance. The
revised guidance consolidates fifteen violations types into ten. There is no implementation
schedule contained in the guidance document. This revision will be incorporated in the Lead and
Copper Rule reporting guidance when the rule is repromulgated, probably around June 1999, and
an effective date (probably January 1,2001) will be listed then. We anticipate having
SDWIS/FED modified by May 2000 to accept the reduced reporting requirements, should states
elect to adopt them early.
Thanks to all members of the Data Sharing Committee for then- work on this project.
Thanks especially to Tom Poleck for preparing issuing papers and the final guidance.
I would appreciate regional branch chiefs sharing this package within their region as
appropriate.
Enclosure
cc: Bob Blanco
Connie Bosma
FranHaertel
Ed Cottrill
Judy Lebowich, SRMD
Vanessa Leiby, ASDWA
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 133
Date Signed: February 17,1999
Enclosure 1
MEMORANDUM
SUBJECT: Data Sharing Recommendation for the Lead and Copper Rule - Final Report
FROM: Robert J. Blanco, Director
Implementation and Assistance Division
TO: Cynthia C. Dougherty, Director
Office of Ground Water and Drinking Water
Attached for your approval is the Data Sharing Committee's (DSC's) report, "The Data
Sharing Committee's Recommendations for Lead and Copper Rule (LCR) Violation Reporting".
This report is the result of the ongoing work of the DSC to review all current Safe Drinking
Water Information System (SDWIS) reporting requirements and represents the third in a series of
four reports on the various drinking water rules. The final report will deal with the Phase I/II/V
Rules.
This report recommends the consolidation of the current 15 LCR violation types into 10.
No significant disagreement was raised during the review process from the states or regions on
this recommendation. As a result, it was not sent to the SDWIS Executive Steering Committee
for review. Given the imminent promulgation of the technical fixes to the LCR and issuance of
the revised reporting guidance, I suggest that the attached recommendation be incorporated into
the revised rule reporting guidance.
Thank you for your continued support of the committee's efforts and for your
consideration of the attached recommendation. If you would like to discuss this matter further,
please contact me or Jan Auerbach. You may also wish to contact Tom Poleck at (312) 886-
2407, who was the lead committee member for this report.
Attachment
cc: Data Sharing Committee
Data Sharing Committee Advisory Group
ASDWA/EPA Data Management Steering Committee
Jan Auerbach, OGWDW
Vanessa Leiby, ASDWA
Approved: Cynthia Dougherty /s/, 3/29/99
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 133A
Date Signed: December 29,1998
The Data Sharing Committee's
Recommendations for Lead and
Copper Rule Violation Reporting
FINAL
December 29,1998
Prepared for the
Office of Ground Water and Drinking Water
by the
Data Sharing Committee
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WSG 133A
TABLE OF CONTENTS
EXECUTIVE SUMMARY 3
I. INTRODUCTION 4
A. Background 4
B. Purpose and Goal 4
C. Protocol for Making Data Sharing Decisions 5
11. DATA SHARING RECOMMENDATIONS FOR THE LCR VIOLATION DATA 6
A. Discussion Highlights 6
B. Background 6
. C. Recommendation 7
D. Cost of Including this Information 16
E. State and Regional Comments on Final Draft 16
HL IMPLEMENTATION ISSUES 15
A. Programmatic and Organizational Issues Associated With Implementation 17
B. Technical Issues 17
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WSG 133A
EXECUTIVE SUMMARY
This report represents the DSC's analysis of the Lead and Copper Rule (LCR) especially as it pertains to violation
reporting requirements for the Safe Drinking Water Information System (SDWIS/FED). In preparing this report, the goal
of the DSC was to review and analyze the EPA data needs for the LCR, to work in collaboration with the LCR Work
Group on reporting issues related to regulatory changes, and to make recommendations regarding other non-regulatory
changes in reporting requirements to the Director of the Office of Ground Water and Drinking Water.
Data Sharing Recommendation
The previously described protocol for making data sharing decisions (December, 1995) was followed to arrive at these
recommendations. The changes to requirements being recommended in this document were arrived at after lengthy
discussion about shortcomings and inconsistencies in the way data are currently reported and the-justified need for these
data. The committee focused on five major reporting issues, the first four of which were passed on to the LCR Work
Group for their consideration and incorporation into the Notice of Data Availability (NOD A) and proposed rule changes.
The fifth issue, violation reporting, did not require a change to the regulations and was therefore not included in the
NODA or proposed rule changes. This report therefore discusses only the DSC's recommendations regarding LCR
violation reporting.
The DSC is recommending that the following changes be made to the LCR violation reporting requirements:
That the number of individually reported violation types be reduced from the current 15 to 10 (i.e., that some of the
currently individually reported violations be consolidated for SDWIS/FED reporting). (See Page 3 for more detail)
ral Implementation Recommendation.
In order to implement any new reporting requirements, a sufficient amount of time must be provided to primacy agencies
for planning, budgeting, and implementing. The most time consuming and costly activity that must be performed is the
reprogramming of State data systems to manage and transfer the required data in SDWIS data transfer file (DTF) format.
In the past, 18 months were provided for this activity. The DSC recommends that States begin reporting under the new
requirements in the quarter after the SDWIS update software is modified, but no, later than 18 months after the
publishing and effective date for these recommendations, including the publishing of technical documentation. In
addition, since most of these recommended changes will actually be preferred by many States, modification to
SDWIS/FED should be made as soon as possible to allow for the new reporting so that States are not required to report
under the existing requirements for any longer than is necessary. Until the time that these new requirements become
effective as described above, the current reporting requirements will remain in effect.
Through this report, the DSC is recommending to make changes to the current LCR reporting requirements which will
simplify the requirements and will not significantly change the reporting burden on States. The DSC believes that on
balance, the understanding of LCR violation reporting should be improved and therefore the data quality improved since
the requirements are being simplified. The burden associated with this reporting however will not change significantly by
this recommended change in reporting since the number of violations that must be determined and reported does not
necessarily change.
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WSG 133A
I. INTRODUCTION
A. Background
The LCR is undoubtedly the most complex drinking water regulation promulgated to date. With 11 milestones, IS
violation types, and 90th percentile data, its reporting requirements are also complex. The Data Sharing Committee
analyzed the current reporting requirements for the LCR following the protocol previously documented (December, 1995
Protocol for Making Data Sharing Decisions). This report represents the DSC's recommendations on LCR violation
reporting. (The DSC continues to work with the LCR Workgroup on reporting requirements that required changes to the
regulation, such as milestone data.)
Since all violations must be reported to EPA (CFR § 142.15), the DSC focused on the questions of how these violations
are defined, how they can be grouped together for reporting purposes, and how they can be reported to SDWIS/FED.
Recommendations on other activities such as data verifications and quarterly data submission checking are also
presented. It is the firm belief of the DSC that by simplifying the LCR reporting requirements, the Regions and States
will better understand what is to be reported which will in turn increase the likelihood that complete and accurate data are
reported to SDWIS/FE1D. The overall burden of reporting should also decrease which in turn will increase the
possibility of meeting the requirements of a reduced core data set. The ultimate result should be improved quality of data
that are the most focused and useful to EPA to support LCR implementation oversight and to measure improvement at
reducing lead exposure and improving the safety of public water systems.
The LCR, which was promulgated on June 7,1991, established treatment technique requirements when lead and/or
copper exceed certain levels referred to as action levels. An exceedance occurs when more than 10 percent of the tap
water samples collected are greater than the action level of 0. 0 15 parts per million (ppm) for lead or 1. 3 ppm for
copper. Unlike other drinking water regulations, exceeding the lead and/or copper action level is not a violation. Instead,
this exceedance triggers one or more of the following treatment technique (TT) requirements: public education, corrosion
control treatment, source water treatment, and lead service line replacement.
Lead and copper results are expressed as 90th percentile levels. For a system collecting 10 samples, this would be the 9th
highest lead or copper sample result obtained during a monitoring, period. The LCR reporting requirements are based
primarily on reporting information about various milestones associated with the LCR and violations of LCR
requirements.
On April 12,1996, the EPA proposed changes to the LCR (61 FR 16348, April 12,1996 including changes to State
reporting requirements. The DSC considered these proposed changes and worked with the LCR Workgroup during their
deliberations on reporting requirements. Those data that were specifically mentioned in the regulations (e.g., milestone
data) and that require a change to the regulation to implement were deferred to the LCR Workgroup. (This prevented any
major duplication of effort since procedures were already in place via the rule development process to ensure that
stakeholder involvement was obtained.)
B. Purpose and Goal
This report is a somewhat scaled down version of the DSC's September 26,1997 recommendation report on the LCR and
focuses exclusively on violation data. The original report served two purposes; one, to provide input to the LCR
Workgroup as they considered changes to the regulation, and two, to identify any other problems with the LCR reporting
requirements that could be corrected through the data sharing process and through the issuance of guidance. In preparing {
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WSG 133A
VTis report, the goal of the DSC was to review and analyze the EPA data needs for LCR violation data and to make
recommendations on changes to the LCR reporting requirements to the Director of the Office of Ground Water and
Drinking Water.
C. Protocol for Making Data Sharing Decisions.
The DSC is composed of EPA Headquarters and Regional representatives and State representatives (see text box). The
protocol that was followed for making data sharing decisions involved the DSC developing a recommended set of data
elements or changes to current reporting requirements or practices after comment and review opportunities by
stakeholders and other interested parties; review by the ASDWA/EPA Data Management Steering Committee; review by
all States; review by the SDWIS Executive Steering Committee; and, finally1, transmittal to the Director of the OGWDW
for decision-making and distribution as official reporting requirements or data sharing goals.
PWSS Data Sharing Committee Members as of February, 1998
Carol Amend, Region 3, Chair
Tom Poleck, Region 5
Harriet Colbert, OGWDW
Roger Anzzolin, OGWDW
Andy Hudock, OECA/ORE
Bill Davis, Region 6
oug Mandy, Minnesota
Alvey, Oregon
bans Massie, Virginia
Cliff Bowen, California
Mark Rasso, Region 2
Andrew Bartlett, Region 4
Other Participants*
Jan Auerbach, OGWDW
Glen Kedzie, OECA
Betsy Devlin, OECA
Larry Weiner, OGWDW
Abe Siegel, OGWDW
Fran Haertel, Region 6
Judy Lebowich, OGWDW
Barry Greenawald, Pennsylvania
(former DSC member)
Vanessa Leiby/Max Kukoy, ASDWA
ASDWA/EPA Data Management
Steering Committee
"Other participants were involved during meetings, conference calls, or through written comments. Our apologies to
those that we may have omitted from this list.
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WSG 133 A
11. DATA SHARING RECOMMENDATIONS FOR THE LCR VIOLATION DATA
7
A. Discussion Highlights.
The initial efforts of the DSC focused on the current reporting requirements and what changes should be made to
improve the meaning of the data, the use of the data, the quality of the data, and the ease of reporting. Subsequent
discussions focused on the justification and cost of reporting/collecting the data, and the overall burden on States to meet
any new requirements. When deciding which SDWIS attributes to recommend for inclusion in the Core Data Set, the
Data Sharing Committee took the approach that no data should be reported unless EPA has a specific use or need for the
data that justifies the cost of States reporting the data. If data are not particularly useful, or if they are very expensive to
report compared to their usefulness, the committee would not recommend they be included in the Core Data Set.
In addition, an overarching goal that also influenced the final recommendation, was the desire to obtain high-quality data.
Setting overly ambitious and burdensome reporting requirements on States was viewed as counter-productive to this data
quality goal.
The complexity of the current LCR reporting requirements has resulted in a decrease in data quality in SDWIS/FED. As
the committee has discussed in previous reports, there appears to be an inverse relationship between how complex (and
therefore the amount of data and difficulty to understand) reporting requirement are with the quality of data that are
reported (or possibly not reported if a State is not aware of what the reporting requirements are). The following
recommendations therefore have an inclination toward simplification, although this cannot be at the expense of being
able to understand and present the implementation and compliance status of the LCR nationally.
Public access and inquiries from many groups to drinking water data are also increasing. There is an increasing need for
EPA to be able to answer at least the fundamental questions and present the basic status of the LCR nationally. The fact
that LCR data are now available through EPA's Envirofacts database on the World Wide Web makes the data quality and
interpretation concerns even more important to resolve.
The last issue discussed by the committee pertained to the complexity and number of violations that are currently
required to be reported. The committee felt that, like the milestone reporting, the amount of data and the variability of
the significance of the data leads to confusion and inconsistent and inaccurate data in SDWIS/FED. Changes to the way <
that violation data are reported to SDWIS/FED do not require a change to the regulations and therefore can be
implemented through guidance. The committee therefore is recommending that the violation reporting be simplified to
allow EPA to focus on the most significant violations and to ease the burden of reporting this information to
SDWIS/FED. In addition, the changes being proposed through the regulatory process for how water quality parameter
(WQP) violations are determined had an impact on the recommendation to consolidate the WQP treatment technique
violations (Types 59 and 60) into a single type.
B. Background
The reporting by States of violation information is already highly justified (i.e., it is required under the Safe Drinking
Water Act (SDWA) and in the National Primary Drinking Water Regulations (NPDWR), it supports the primary
enforcement functions of the EPA, and it is needed in lieu of milestone reporting). The existing SDWIS/FED LCR
violation types are summarized below:
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WSG 133 A
SDWIS Violation
Type Code
51*
52
53
54
55
56
57
58*
59
60
61
62*
63
64
65*
Description
Initial Lead and Copper Tap MIR.
Follow-Up or Routine Lead/Copper Tap M/R
.Initial Water Quality Parameter M/R
Follow-up or Routine Entry Point Water Quality Parameter M/R
Follow-up or Routine Tap Water Quality Parameter M/R
Initial, Follow-up or Routine Source Water M/R
Optimal Corrosion Control Study
Optimal Corrosion Control Installation
Water Quality Parameter Entry Point Noncompliance
Water Quality Parameter Tap Noncompliance
Source Water Treatment Recommendation
Source Water Treatment Installation
Maximum Permissible Level Noncompliance
Lead Service Line Replacement .
Public Education
*Can currently lead to SNC status
Fifteen violation types are significantly more than must be reported for any other regulation. The number of violations
along with the significant other reporting under the LCR leads to a level of complexity that hampers correct and complete
reporting. During the DSC's discussions on this issue, several scenarios for how violation reporting could be simplified
were considered. The following is the DSC's recommendation and alternative options that were also considered.
Four violation types, namely #51,58,62, and 65 currently can lead to a system being classified as a significant
noncomplier (SNC). When the initial reporting guidance was developed, these four violations were judged as the most .
significant from an enforcement prioritization and targeting standpoint.
C. Recommendation
The following option is recommended by the Data Sharing Committee:
Recommended Option; Consolidate violations into fewer types
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WSG 133A
The DSC believes that a certain amount of violation consolidation is possible without hampering the primary EPA uses
of this information of compliance tracking and enforcement targeting. As an example, violation types S3, 54 and 55
could be combined into one " water quality parameter monitoring" violation type, although the reporting format of
differing monitoring periods would need to be solved. These technical reporting problems would be solved during the
development of the reporting guidance that would be provided as part of making these official changes to the LCR
reporting requirements.
The table below shows the specific violation type recommendations being made by the DSC.
Violation Type
Code:
51
52
53
54
55
56
57
58
Description
Initial Lead and Copper
TapM/R
Follow-Up or Routine
Lead/Copper Tap M/R
Initial Water Quality
Parameter M/R
Follow-up or Routine
Entry Point Water
Quality Parameter M/R
Follow-up or Routine
Tap Water Quality
Parameter M/R
Initial, Follow-up or
Routine Source Water
M/R
Optimal Corrosion
Control Study /
Recommendation
Optimal Corrosion
Control Installation
Demonstration
Data Sharing Committee Recommendation
Leave as is. Most systems have already done initial
monitoring. These violations will only be reported for new
system or systems in continued noncompliance. To
maintain consistency in the data base keep these as is.
Leave as is.
Combine with 54 and 55 violations to have one Water
Quality Parameter Monitoring violation type. Most
systems already should have done initial monitoring but
very few violations are in the database. If we change the
code, changing them will not be much of a .burden.
Combine with 53 and 55 to have one Water Quality
Parameter Monitoring violation type.
Combine with 53 and 54 have one Water Quality
Parameter Monitoring violation type.
Leave as is.
Combine with 61 for one "Study/Recommendation" type
violation. There was no need expressed to report these
violations separately.
Combine with 62 for one "Installation" type violation.
There was no need expressed to report these violations
separately.
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WSG 133 A
r
Violation Type
Code:
59
60
61
62
63
64
63
Description
Water Quality Parameter
Entry Point
Noncompliance
Water Quality Parameter
Tap Noncompliance
Source Water Treatment
Recommendation
Source Water Treatment
Installation
Maximum Permissible
Level Noncompliance
Lead Service Line
Public Education
Data Sharing Committee Recommendation
Combine with 60 for one WQP TT violation type.
Combine with 59 for one WQP TT violation type.
Combine with 57 for one "study" type violation. There was
no need expressed to report these violations separately.
Combine with 58 for one "Installation" type violation.
There was no need expressed to report these violations
separately.
Leave as is. There was some discussion of combining this
with 59 and. 60 violations but the longer compliance
period here would bury the more critical 59 violations.
Leave as is.
Leave as is.
The following table shows the results of the consolidation discussed above. The original 15 violation
types are reduced to 10.
Current
Violation Type
Codes
51
52
53, 54, & 55
56
57&61
Description
Initial Lead and Copper
TapM/R
Follow-up or Routine
Lead/Copper Tap M/R
Initial, Follow-up, or
Routine WQP M/R
Initial, Follow-up, or
Routine Source Water
M/R
Study/
Recommendation
Violation
Comments
No change.
No change.
.. .. . .- . - ....;.,. . i *i-;i-t.**"*- *•*:•• • - y ••*.;*•:•/ .••'•* . • •* •
Combination of violation types 53, 54, and 55.
No change.
ForOCCTorSOWT.
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WSG 133A
Current
Violation Type
Codes
S8&62
59 & 60
63
64
Description
Installation
Demonstration
Violation
WQP Noncompliance
MPL Noncompliance
Lead Service Line
Replacement
Comments
ForOCCTorSOWT.
Combination of violation types 59 & 60.
No change.
No change.
fl OSi •••••••••••••••••••••
Some States have expressed a need or desire to report fewer violation codes. Consolidating violation
types may alleviate the burden for some states to maintain and. report the more detailed violation
types.
It would reduce the number of violation codes and in so doing, make queries pertaining to the LCR
violations less difficult to write and less complicated.
EPA has a responsibility to learn of violations from State primacy agencies and to assess the
appropriateness of State responses to all violations. Consolidating violations could still provide the
information the agency needs because all violations would still be reported only in a consolidated
format.
Consolidated violation reporting would be consistent with the reporting done under the Surface
Water Treatment Rule where all monitoring and treatment technique violations are consolidated into
single types.
Cons,
Some States may have to modify their data reporting systems if we change the existing codes.
Differing monitoring periods could make SNC determinations more difficult, or at the least may
require a modification to the SNC definitions. Changing this reporting would cause a problem with
using and understanding historical data (i.e., data reported using the original codes).
The following alternative options were also considered by the committe. They are being I presented
below for discussion purposes and to be considered during any review of this document,
Alternative Option 1; Status Quo; leave the violation reporting as is.
This option would leave the 15 violations codes (from 51 through 65) intact as required
10
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WSG 133A
^DWIS/FED reporting requirements. The existing violation codes are shown in the background "
material above.
f fv& •••••••••••*•***••
Leaving the codes as they now are would keep the violation data in the database consistent..
Historical information could be analyzed along with new information without special efforts to
interpret the data.
More detailed analysis of compliance oversight could be conducted.
States would not have to modify their data systems if they had already done so to meet the current
requirements.
Cons,
Some States have expressed a need or desire to report fewer violation codes. The existing IS codes
are more detailed than the reporting requirements for any other rule.
The existing number of violation codes is so large (IS) that many queries pertaining to the LCR
violations will be difficult and complicated to write and understand.
: Similar to the recommended version but with one less consolidation.
This option is similar to the recommended option, but does not consolidate the WQP noncompliance
violations (Types S9& 60). The following table shows the results of this consolidation. The original
15 violation types are reduced to 11.
Current
Violation Type
Codes
51
52
53, 54, & 5.5
56
57&61
Description
nitial Lead and Copper
Tap M/R
rollow-up or Routine
.ead/Copper Tap M/R
nitial, Follow-up, or
Routine WQP M/R
nitial, Follow-up, or
Routine Source Water
M/R
Study / Recommendation
Violation
Comments
No change.
'to change.
Combination of violation types 53, 54, and 55.
to change.
For OCCT or SOWT.
11
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WSG 133A
Current
Violation Type
Codes
S8&62
59
60
63
64
65
)escription
nstallation
demonstration Violation
WQP Entry Point
Noncompliance
WQP Tap
Noncompliance
APL Noncompliance
Lead Service Line
Replacement
Public Education
Comments
ForOCCTorSOWT.
No change.
No change.
No change.
No change.
No change.
fmV9 ••••••••••••••••
Basically the same as for the recommended option (see above).
Gaining some more detail, but since neither of these violation types lead to SNC status, not gaining
much from a SNC tracking perspective. Will gain a more detailed understanding of the WQP TT
violations that occur.
Cons,
Basically the same as for the recommended option (see above).
Not as simplified. May make reporting slightly more burdensome.
Alternative Potion 3;
Report fewer violation types
This option may not be viable since according to the Safe Drinking Water Act and the National
Primary Drinking Water Regulations, all violations are to be reported to EPA. Reporting fewer
violation types would mean identifying, particular violations under the LCR that the EPA would
require information about. As an example, under the LCR, public water systems are required to
submit a site sampling plan to primacy agency and have it approved. If the PWS does not submit a
plan, it is in violation. Under the IS existing codes, this violation is to be reported as a Type 51
violation (Initial M/R) although some States may not consider the failure to submit a sampling plan a
51 violation. Some states do not accept initial LCR tap sampling results if the site sampling plan is
not in place so the PWS would eventually receive a 51 violation. A distinctive site sampling plan
violation is not currently reported. This same logic could be applied to other violations where only
the most significant ones would then be reported.
12
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WSG 133A
Raving said that, it would be possible to reduce the number of reported violation types further, but
still account for all of the possible violations under the rule. As an example, the following table
shows a more extreme consolidation of violation types, focusing on a couple of different types of
monitoring violations and capturing all others with a generic treatment technique and M/R violation
types. Another slight variation of this approach would be to leave the Type 65 (Public Education)
violation as a separate violation due to its unique characteristics and the fact that it can currently
lead to SNC status.
Violation Type
Code
)ata Sharing Committee Recommendation
51
nitial Lead and Copper
Tap M/R
Leave as is. Most systems have already done
nitial monitoring. These violations will only be
reported for new system or systems in continued
noncompliance. To maintain consistency in the
data base keep these as is.
52
Follow-Up or Routine
Lead/Copper Tap M/R
Leave as is.
53
Initial Water Quality
^arameter M/R
Combine with 54 and 55 violations to have one
Water Quality Parameter Monitoring violation
type. Most systems already should have done
nitial monitoring but very few violations are in
the database. If we change the code, changing
them will not be much of a burden.
54
7ollow-up or Routine
Entry Point Water
Quality Parameter M/R
Combine with 53 and 55 to have one Water
Quality Parameter Monitoring violation type.
55
follow-up or Routine
Tap Water Quality
Parameter M/R
Combine with 53 and 54 have one Water Quality
Parameter Monitoring violation type.
56
[nitial, Follow-up or"
Routine Source Water
M/R
Leave as is.
57
Optimal Corrosion
Control Study /
Recommendation
Combine into one generic LCR TT violation type.
58
Optimal Corrosion
Control Installation
Demonstration
Combine into one generic LCR TT violation type.
13
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WSG 133A
Violation Type
Code
59
60
61
62
63
64
65
Description
Water Quality Parameter
Entry Point
SToncompliance
Water Quality Parameter
Tap Noncompliance
Source Water Treatment
Recommendation
Source Water Treatment
Installation
Maximum Permissible
Level Noncompliance
Lead Service Line
Replacement
Public Education
Data Sharing Committee Recommendation
Combine into one generic LCR IT violation type.
Combine into one generic LCR TT violation type.
Combine into one generic LCR TT violation type.
?."'... . .* '-'.'-.**&•' ~^- ... .... •-•••
Combine into one generic LCR TT violation type.
Combine into one generic LCR TT violation type.
Combine into one generic LCR TT violation type.
Combine into one generic LCR TT violation type.
The following table shows the results of the consolidation discussed above. The original 15
violation types are reduced to 5.
Current
Violation Type
Codes
51
)escription
nitial Lead and Copper
Tap M/R
-^ [Follow-up or Routine
Lead/Copper Tap M/R
*> pitial, Follow-up, or
' ' 3 [Routine WQP M/R
Initial, Follow-up, or
56 Routine Source Water
57 through 65 Ud and Copper Rule
°^ [IT Violation
Comments
•io change.
No change.
Combination of violation types 53, 54, and 55.
No change.
Combination of violation types 57 through 65.
Pros,
14
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WSG 133A
Vne rule is complex and some violations are more important than others.
Reporting fewer violation types would help to focus on the most significant violations.
Fewer violation types to report would presumably save State resources in some instances.
Fewer violation types could be more meaningful since several related requirements are not grouped
together as a single violation type (e.g., failure to conduct initial monitoring would mean just that
instead of perhaps failure to submit a sampling plan).
Training staff on less complicated reporting requirements would be easier; the more violation types,
the more complicated the training.
May lead to improved data quality since the reporting would be less complex and moire
understandable.
Cons.
EPA has a responsibility to learn of violations from State primacy agencies and to assess the
appropriateness of State responses to all Violations. The agency tries to define the most significant
violations, which require formal enforcement responses due to continued noncompliance or due to a
large single event deviation from the requirement.. Even a less important violation like that
cribed above would become important if it continued long enough. Without every type of
llation being reported either by itself or consolidated with others, the agency may not become
rare of some significant situations and would not be meeting the requirements of the SDWA.
The reconciliation of historically reported violations according to the original guidance with this
more condensed format may not be possible or at a minimum may be confusing.
Some States may have to modify their data reporting systems if we change the existing structures.
By consolidating in this extreme manner, specificity is lost and it becomes more difficult to get a
picture of what problems the water systems are having. The addition of the major/minor flag as a
reporting requirement for these consolidated IT violation types could help distinguish between the
truly serious violations and the minor ones.
Alternative Option 4: Report more violation types
Although the current reporting requirements require more violation types under the LCR than under
any other rule (15), the rule is complex and could easily be broken into more types. To use a prior
example, the requirement to submit a site sampling plan could be reported as a specific violation
type.
Jt ru2i •••••••••••••••••••• •
A has a responsibility to learn of violations from State primacy agencies and to assess the
priateness of State responses to all violations. Violation information could more completely be
15
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WSG 133A
assessed by the Agency if more violation types were reported.
Eliminates any redundancy or ambiguity in the way violations are reported since separate types are
identified for every possible violation.
Some States have expressed a need to report fewer violation codes. The existing
15 codes are more detailed than the reporting requirements for any other rule.
Adding more codes only makes this worse.
The existing number of violation codes is so large (IS) that many queries pertaining to the LCR
violations will be difficult to write and complicated. Defining more violation codes would make the
problem worse.
*
States have problems with training staff on these requirements. The more violation types, the more
complicated the training
D. Cost of Including this Information
The recommended changes fall within the current format and reporting to SDWIS/FED. The
consolidation of violation codes would require minor changes to the SDWIS/FED edit/update
processing software. It is not expected that the recommended change would cause a significant
increase in reporting burden.
E. State and Regional Comments on Final Draft
The Final Draft (dated October 29, 1998) of this recommendation report was sent out to the
ASDWA membership and to the Regions for comment. Five states commented on the proposed
recommendations; Texas, Missouri, Wisconsin, Maryland and West Virginia. Three states, Texas,
Missouri, and West Virginia agree with the DSC recommended consolidation of violation reporting.
Maryland and Wisconsin both prefer Alternative Option 2 which is, different from the DSC
recommendation in that it does not consolidate violation types 59 and 60. Maryland's comment is:
"Maryland does not agree with combining violation types 59 and 60 since point-of-entry WQP
testing and distribution/tap WQP testing follow two different schedules. It would be easier for States
to track these violations separately, and will help avoid confusion."
DSC Response: As with several of the other situations where violation types were consolidated for
purposes of reporting to EPA, the States will need to track the individual violation types as per the
LCR. This recommendation is not suggesting that States necessarily change the way they are
currently tracking compliance with the LCR, but only in the way the information is forwarded to
EPA. In addition, changes being made through the technical rule fixes will make the tracking and
reporting of all water quality parameter violations more consistent with the DSC's recommended
option. The DSC therefore prefers the recommended option and is hopeful that the details behind the
actual reporting of these violations will be satisfactorily described in the revised reporting guidance
that will follow.
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WSG 133A
IMPLEMENTATION ISSUES
There are several programmatic and technical issues that were considered during the data sharing
decision making process and that influenced the final recommendation. The more significant issues
are summarized below.
A. Programmatic and Organizational Issues Associated With Implementation
One issue that influenced the recommendations made in this report was the need to track systems in
significant non-compliance. Most of the data reported under the LCR is compliance related and used
by EPA to track the compliance status and to prioritize and target enforcement/compliance
assurance activities.
The EPA initiatives to reduce the reporting burden on States and to reduce reporting frequency by
50% also played a role in the recommendations made in this report. This issue was reinforced by the
SDWIS ESC in their directive to the DSC to analyze the cost to the States of any new reporting
requirements. Although cost was considered in developing the recommendations in this report,
justification of the data need and benefits of reporting and the fact that violation reporting is
required under the SDWA was an equal, if not greater, determining factor. In addition, it was agreed
that improving the quality and meaningfulness of the data would increase the positive aspects of
reporting and decrease the negative aspects. Some of the cost associated with these recommended
changes can be thought of as offset by the improvements in data quality that will be realized.
Technical Issues
The changing of any reporting requirements cannot be made without considering several technical
issues. The following list contains some of the technical tasks that must be completed before any
new reporting requirement can become effective.
1. The SDWIS architecture must be able to accommodate the needed attributes.
2. OGWDW must reprogram the SDWIS edit/update programs to allow for the data to be entered
correctly into SDWIS/FED.
3. The State must collect and maintain the data (preferably in an information management system) in
a manner to ensure quality.
4. The State must reprogram their data conversion and transfer programs so that the data can be
submitted in the acceptable DTP format, or could use the FRDS Data Entry (FRDS_DE) program
and enter the data manually. This step will not be necessary for SDWIS/STATE States assuming
that SDWIS/STATE is modified to meet all of the LCR reporting requirements.
17
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 134
Date Signed: Unknown
MEMORANDUM
SUBJECT: Boiling Water Time for Killing Pathogens
FROM: James R. Elder, Director
Office of Ground Water and Drinking Water
TO: Drinking Water Branch Chiefs, Regions IX
I am attaching an article from the Morbidity and Mortality, Weekly Report (September
18,1994), on the boil water advisory issued during December 1993 for Washington, DC. The
last paragraph of this article includes a joint EPA/Centers for Disease Control policy statement
on how long individuals should boil their water when a water system issues a boil water notice.
The statement recommends that individuals bring their water to a rolling boil for one
minute. This will kill all known waterborne pathogens, including Giardia and Cryptosporidium.
Because the boiling point is lower at higher altitudes, and thermal death information is not
complete for all waterborne viruses, the policy statements recommends that individuals at
elevations above 2 kilometers (6562 feet) boil their water for three minutes as a precaution.
Please convey this information to your States.
Attachment
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WSG 134
Morbidity and Mortality Weekly Report
September 16,1994 Vol. 43 No. 36
Pp. 661-669.
Epidemiologic Notes and Reports
Assessment of Inadequately Filtered Public Drinking Water -
Washington, D.C., December 1993
The risk for waterborne infections diseases increases where filtration and other standard
water treatment measures fall. On December 6,1993, water-treatment plant operators in the
District of Columbia (DC) began to have difficulty maintaining optimal filter effectiveness. On
December 7, filter performance worsened, and levels of turbidity (i.e., small suspended particles)
exceeded those permitted, by U.S. Environmental Protection Agency (EPA) standards. On
December 8, DC residents were advised to boil water intended for drinking because of high
Municipal water turbidity that may have included microbial contaminants. Although adequate
chlorination of the DC municipal water was maintained throughout the period of increased
turbidity, the parasite Cryptosporidium parvum is highly resistant to chlorination. Because of the
increased risk for infection with this organism and other enteric pathogens, the DC Commission
of Public Health and CDC conducted four investigations to determine whether excess cases of
diarrheal illness occurred because residents drank inadequately filtered water. This report
describes the results of these investigations.
The investigations included a random-digit-dialed telephone survey of DC residents and
retrospective reviews of records from nursing homes, and seven hospital microbiology
laboratories. The occurrence of diarrheal illness or presence of organisms in stool during the two
weeks before the turbidity violation (period 1: November 22 - December 5) was compared with
that during the 2-3 weeks after the violation was first noted (period 2: December 6 - December
21 or 26). The incubation period for cryptosporidiosis typically ranges from 2 to 14 days.
Telephone survey. The telephone survey sampled 1197 household members (0.2% of
DC's 600,000 residents) from 462 households in all 22 DC residential ZIP code areas. The
percentage of persons who reported having diarrhea (i.e., three or more loose or watery stools in
a 24 hour period) were similar for period 1 (the reference period) and period 2 (2.8% versus
3.5%, respectively, relative risk [RR]=1.2; 95% confidence interval [CI]=0.8 -1.9). A total of
37% of persons reported that bottled water was then* principal source of drinking water at home,
and 30% reported that bottled water was their primary source of drinking water both at home and
at work. For both periods, reported use of bottled water was similar for persons with and without
diarrhea.
Hospital emergency department survey. During the two periods, totals of 2140 (period
1) and 3315 (period 2) persons were evaluated at two DC hospital emergency departments.
Medical records were reviewed for all persons with diagnoses suggestive of gastrointestinal
2
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WSG 134
illness8 (104 and 211 persons for Periods 1 and 2, respectively). The percentage of all persons
who had diarrhea recorded in their emergency department charts was similar for periods 1 and 2
(1.5% versus 2.0%; RR=1.3; 95% CI=0.9 - 2.0). For both periods, approximately 70% of
patients with diarrhea! illness were DC residents. The percentages of stool specimens that were
Positive for enteric pathogens (i.e., bacteria, parasites, or rotavirus antigen) were similar for the
two periods. During each period, two stool specimens were examined for Cryptosporidium:
none were positive during period 1, and one was positive during period 2.
Nursing home survey. Medical records were reviewed for all 443 residents from two
selected nursing homes (14% of the 3156 nursing home beds in DC). During both periods, the
mean numbers of bowel movements per person per day were 1.3. In addition, the daily mean
number of residents with loose or large volume bowel movements we're similar (27.1 and 27.8
persons for periods 1 and 2), and antidiarrheal medications were given at the same rate (0.002
doses per person per day) during both periods.
Microbiology laboratory survey. Data were obtained from microbiology laboratories of
seven (64%) of the 11 DC hospitals. Although the total number of stool specimens examined for
Cryptosporidium increased from period 1 (32 specimens) to period 2 (54 specimens), the
percentage positive was lower but not statistically different for period 2 (12.5% versus 7.4%;
RR= 0.6; 95% CI= 0.2 - 2.2). The percentages of stools positive for other pathogens (i.e.,
bacteria, Giardia lamblia, and rotavirus antigen) were similar for both periods.
Reported by: MNAkhterMD, Commissioner, ME Levy, MD, District Epidemiologist, C
Mitchell, R Boddie, District of Columbia Commission of Public Health. NDonegan, B Griffith,
M Jones, Washington Hospital Center; TO Stair, MD, Georgetown Univ Medical Center
Washington, DC, Epidemiology Br, Div of Parasitic Diseases, National Center for Infectious
Diseases, CDC.
Editorial Note: To ensure safe municipal drinking water supplies, water treatment programs
employ multiple barriers to prevent contaminants from reaching the consumer. These barriers
include protection of the watershed, chemical disinfection, and filtration of surface water
supplies such as lakes and rivers. When one of these barriers is absent or fails, the risk for
waterborne disease may increase. The failure of the filtration process in DC prompted particular
concerns about contamination with and exposure to Cryptosporidium.
Outbreaks of cryptosporidiosis resulting from surface water contamination have occurred
when turbidity was 0.9 - 2.0 nephelometric turbidity units (NTU)K For example, in a waterbbme
8 Gastroenteritis, diarrhea, nausea, vomiting, gastritis, viral syndrome, dehydration, and
hyperemesis gravidarum.
b The American Waterworks Association encourages water utilities to maintain turbidity
measurements of water as it leaves the treatment plant at or below 0.1 NTU.
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WSG 134
outbreak in Milwaukee in 1993, a peak turbidity of 1.7 NTU was associated with illness in
approximately 400,0.00 persons (1). In DC, the turbidity levels reached 9.0 NTU. -
Because Cryptosporidium is highly resistant to chlorination, disinfection of water is not a
reliable method for preventing exposure to it. The failure to detect increased rates of illness
among residents of DC probably reflects the absence of, or presence of only a small number of,
oocysts in the water that supplied the municipal water treatment plant at the time the filtration
failure occurred. In addition, the investigations in DC did not detect any increase in diarrheal
illness associated with the elevated water turbidity; however, the sample sizes in these
investigations were too small to rule out low level transmission of waterborne agents. For
example, the telephone survey probably would not have detected an outbreak affecting fewer
than 12,000 persons.
Cryptosporidium is present in 65% - 87% of surface water samples tested throughout the
United States (2,3). However, because current techniques to detect Cryptosporidium in water are
cumbersome, costly, and insensitive, tests to detect it are not routinely performed by water
utilities. During 1995, EPA plans to collect additional information about Cryptosporidium and
other microorganisms in surface water used by municipal waiter treatment facilities in the United
States and to assess the effectiveness of water treatment methods for removing them.0
The early detection of waterborne outbreaks of cryptosporidiosis is difficult for at least
four reasons: 1) many physicians are unaware that Cryptosporidium can cause watery diarrhea;
2) the symptom complex often resembles a viral syndrome; 3) clinical laboratories often do not
routinely test for Cryptosporidium when a physician requests a stool examination for ova and
parasites; and 4) few states include cryptosporidiosis as a reportable disease.
Variations in recommendations regarding the duration of boiling during boil water
advisories have reflected uncertainty about how long some organisms can survive. On the basis
of a recent literature review, CDC and EPA recommend that water be rendered microbiologically
safe for drinking by bringing it to a rolling boil for 1 minute; this will inactivate all major
waterborne bacterial pathogens (i.e., Vibrio cholerae, enterotoxigenic Escherichia coli,
Salmonella, Shigella sonnei, Campylobacter jejuni, Yersinia enterocolitica, andLegionella
pneumophila) and waterborne protozoa (e.g., Cryptosporidium parvum, Giardia lamblia, and
Entamoeba histolytica [4 - 7]). Although information about thermal inactivation is incomplete
for waterborne viral pathogens, hepatitis A virus - considered one of the more heat resistant
waterbome viruses (8) - also is rendered noninfectious by boiling for 1 minute (9). If viral
pathogens are suspected in drinking water in communities at elevations above 6562 ft (2 km), the
boiling time should be extended to 3 minutes.
C59FR6332,
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WSG 134
References
1. MacKenzie WR, Hoxie NJ, Proctor ME, at. al. A massive outbreak in Milwaukee of
Cryptosporidium infection transmitted through the public water supply. N Engl J Med
1994,331:161-7.
2. Rose JB, Gerba CP, Jakubowski W. Survey of potable water supplies for
Cryptosporidium andGiardia. Environmental Science and Technology 1991;25:1393-
400.
3. LaChevallier MW, Norton WD, Lee RG. Occurrence of Giardia and Cryptosporidium
spp. in surface water supplies. Appl Environ Microbiol 1991;57:2610-6.
4. Bandres JC, Mathewson JJ, Dupont HL Heat susceptibility of bacterial anteropathogens.
Arch Intern Med 1988;148:2261-3.
5. Anderson BC. Moist heat inactivation of Cryptosporidium sp. Am J Public Health
1985;75:1433-4.
6. - Bingham AK, Jarroll EL, Meyer EA. Giardia sp.: physical factors in excystation in
vitro, and excystation vs eosin exclusion as determinants of viability. Exp Parasitol
1979;47:284-91.
7. Boeck WC. The thermal-death point of the human intestinal protozoan cysts. Am J
Hygiene 1921;l:1365-87.
8. Larkin EP. Viruses of vertebrates: thermal resistance. In: Rechcigl M Jr ed. CRC
handbook of foodborne disease of biological origin. Boca Raton, Florida: CRC Press,
Inc. 1983:3-24.
9. Krugman S, Giles JP, Hammond J. Hepatitis virus: effect of heat on the infectivity and
antigenicity of the MS-1 and MS-2 strains. J Infect Dis 1970;122:432-6.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 135
No date
EPA Protocol for Participation in a PWSS Program Data Verification -
In process of being finalized
Contact the Regulatory Implementation Branch at EPA Headquarters at (202) 260-5526 for
additional information.
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Hotline
Compendium
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HOTLINE COMPENDIUM
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH1
Date Issued: September 1987
SUBJECT: Determining MCLs for Man-made Radionuclides
SOURCE: RickCothern
Paul Milvy
Title 40 CFR Section 141.16 specifies the MCL for beta particle and photon radioactivity
resulting from man-made radionuclides present in community water systems. Section 141.16(b)
indicates the method one should use to determine the millirem (mrem) levels of associated man-
made radionuclides. Specifically, it is stated that such calculations shall be based upon two
liter/day drinking water intake used in conjunction with the 168 hour exposure data listed in NBS
Handbook 69. Barium-133, however, is not listed in NBS Handbook 69. If Barium-133 is the
radionuclide of concern, how should the mrem calculation be made? Also, Section 141.16(b)
states that the mrem derivation must be based upon 2 liters/day intake; however, the NBS
Handbook values are based upon 2.2 liters/day. Please clarify this difference. Lastly, the 168
hour data listed in the Handbook pertains to occupational exposure, not necessarily to exposure
relevant to the general public. Please clarify this concern.
Response:
NBS Handbook 69 should no longer be used as supporting information for making mrem
derivation pursuant to Section 141.16. The appropriate document to be used now for that
purpose is entitled "International Commission on Radiation Protection (ICRP) Report No.
30." The ICRP Report 1) contains the necessary information relevant to Barium-133, 2)
is based upon exposure relevant to the general public (not occupational exposure). The
entire document is extensive (seven volumes) and can be found at most technical
libraries. Suitable alternate documents are Biological Effects of Ionizing Radiation
(BIER) Reports Nos. 2 and 3.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH2
Date Issued: September 1987
SUBJECT: Interstate Carriers
SOURCE: RayEnyeart
What is the difference between an interstate carrier and a non-community water system? Can an
interstate carrier be classified as a non-community water system? If so, can such an interstate
carrier be classified as a non-transient non-community water system (NTNCWS)?
Response:
Those interstate carriers that meet the definition of a public water system, as specified in
40 CFR Section 141.2(e), are considered to comprise a subcategory of non-community
water systems. An interstate carrier could therefore be a NTNCWS if it meets the
NTNCWS definition; i.e., if it is large enough to employ 25 or more people for six or
more months per year.
Note: This guidance may be updated in the future. Contact Steve Clark at EPA
Headquarters for further information.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH3
Date Issued:" January 1988
SUBJECT: Definition of Service Connection
SOURCE: Craig Vogt
An industrial production facility (located on a single site comprised of a contiguous tract of land)
consists of six separate buildings all serviced by the same drinking water source -- a private on-
site well. Does this non-community water system consist of six service connections or one
service connection?
Response:
Each building serviced by the same non-community water system is considered to be a
service connection of that system. Therefore, the above situation consists of six service
connections.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH4
Date Issued: February 1988
SUBJECT: Public Notification Requirements: Supplemental
Notices/Lead
SOURCE: Carl Reeverts
The special lead and general public notification proposal appeared in the April 6,1987 Federal
Register [52 FR10972]. Within that proposed rule, EPA requested comments on whether mail
delivery of the special lead notice to billed customers should be supplemented by had delivery to
consumers who are not billed customers [52 ER 10976]. Therein the Agency also stated that it
was not proposing such a requirement.
Supplemental delivery is primarily an issue with regard to apartment complexes and similar
situations. The apartment complex owner (the billing unit) may receive a bill-stuffer or mail-out;
however, individual units and consumers may not receive notification.
The final public notification rule appeared in the October 28,1986 Federal Register [52 FR
41534]. Within the final rule, the preamble discussion pertaining to manner-of-notice [52 FR
41544] does not appear to either change or reaffirm EPA's position as stated in the proposal; i.e.,
not to require supplemental hand delivery in the type of situation outlined above. At the same
time, however, Section 141.34(b) [52 FR 41549] of the final rule states that the special lead
notice "...shall be given to persons served by the system..." With regard to apartment complexes
and similar situations, is it a requirement that supplemental hand-delivery be provided to unbilled
individual units? The above, underscored regulatory language seems to indicate that
supplemental notification is a requirement.
Response:
Within the final rule, EPA's position remains unchanged from that specified in the
preamble to the proposed rule. Those community water systems choosing the mail-
delivery option (bill-stuffer or separate mail-out) of special lead notification, are not
required to provide a hand-delivered notice to individual apartment or complex units, in
situations where the complex owner is the only billing unit.
The Agency, however, encourages the billing unit and/or water system to engage in
efforts to ensure that individual units receive notification.
Various State public water supply programs may have stricter requirements. It is
recommended that community water suppliers contact their respective State programs for
a final response.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH5
Date Issued: April 1988
SUBJECT: Lead Ban Enforcement
SOURCE: Peter Lassovszky
Is it appropriate for state and/or local governments to use commercially available lead-in-solder
spot-testing kits for lead ban enforcement purposes?
Response:
Yes. Commercial lead-in-solder testing kits will indicate the presence or absence of lead
within solder. (If knowledge of the exact concentration is needed, more extensive
laboratory testing is necessary). Lead solders contain approximately 30 percent to 50
percent lead ~ usually 50 percent lead. The test-kits are sensitive to lead concentrations
within the above range, and thus will detect the use of lead/tin solder and other lead
solders.
Spot-testing kits will not produce a positive result at solder lead concentrations of less
than 0.2 percent (the lead ban "lead free" level). Such kits, however, should not be used
as production quality control mechanisms for ensuring that any particular "lead free"
solder actually contains less than 0.2 percent lead. More sophisticated laboratory
techniques are needed for quality control purposes.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH6
Date Issued: April 1988
SUBJECT: State Enforcement of the NSDWRs
SOURCE: Ray Enyeart
Title 40 CFR Section 143.1 states that the National Secondary Drinking Water Regulations
(NSDWRs) are not federally enforceable, but are intended only as guidelines to the States.
However, SDWA Section 1414(d) indicates that States must ensure compliance with the
NSDWRs, or they will be "notified" by EPA. What is the intent of 1414(d)? Also, have primacy
agreements between the States and Regions mandated that States enforce the NSDWR as they
must the National Primary Drinking Water Regulations?
Response:
Section 1414(d) of the SDWA sets forth the federal requirements pertaining to the States'
failure to ensure compliance with the NSDWRs. Subsection (d) provides:
Whenever, on the basis of information available to him, the Administrator finds that
within reasonable time after NSDWR have been promulgated, one or more public water
systems hi a State do not comply with secondary regulations, and that non-compliance
appears to result from a failure of such States to take reasonable action to assure that
public water systems throughout the States meet secondary regulations, he shall so notify
the State. The preamble to the July 19,1979, NSDWR final rule states that [44 F_R
42196]: EPA interprets Section 1414(d) to give the States the responsibility of taking
"reasonable action" to assure the public water systems are providing drinking water
which protects the public welfare and does not cause consumers not to drink the water
served due to aesthetic reasons.
...Appropriate action in a particular case will depend on a number
of factors including: the degree of non-compliance with the
secondary regulations; the direct and indirect adverse results such
as the incurrence of substantial expenditures by individuals to
upgrade the quality at the tap or the risk and expense of individuals
shifting to other water sources; the nature of the raw water sources
available; and such efforts that are being taken to assure
compliance with the primary regulations.
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WSGH6
In response to the second portion of the question, "Have primacy agreements between the
States and Regions mandated that states enforce the secondary regulations?" The answer
is no.
Although some States have adopted EPA regulations as State secondary regulations
(some States have even adopted select secondary contaminants as State primary
contaminants), State activity on secondary contaminant regulations played no role in EPA
determinations of whether or not to delegate primacy to States.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH7
Date Issued: May 1988
SUBJECT: Pipe Fittings Under the Lead Ban
SOURCE: Peter Lassovszky
Section 1417(d)(2) of the SDWA defines "Lead free" as "...when used with respect to pipes and
pipe fittings refers to pipes and pipe fittings containing not more than 8.0 percent lead." What is
covered under the category of pipe fittings? Can pipe fittings be interpreted to mean elements
other than pipes, fluxes or solders that might be found in a water distribution system?
Response:
The Office of General Counsel's (OGC) interpretation of the scope of the lead ban is best
addressed by citing a portion of a March 16, 1988, memorandum from Doris Nagel (law
clerk) to Margaret Silver (attorney). The memo concerns the application of the lead ban
to "Packers" used in drinking water wells. The memo reads as follows:
...While there is no explicit indication that Section 1417 was
intended to prohibit the use of lead hi materials other than solders,
fluxes, or pipes, there is also no indication that Congress did not
intend to prohibit such use. The legislative history suggests that
Congress never focused on the various parts of a water supply
system that may contribute lead to the drinking water; rather,
Congress appeared concerned with reducing the health effects of
lead without imposing large costs or causing major disruptions in
service by applying the ban to existing facilities...
Furthermore, the OGC memorandum states that the legislative history and language in
Section 1417 makes it clear that the main focus of Congress was to keep lead out of new
water supply systems. Although the term "pipe fittings" is not specifically listed under
Section 1417(a)(l) as being prohibited, it is addressed under the definition of "lead free"
found in Section 1417(d)(2). To conclude, based upon the legislative history, and the
language of Section 1417, the OGC believes "...that it is reasonable to interpret Section
1417 as banning the use of lead packers hi drinking water wells." Since "pipe fittings"
are included under the lead ban, and OGC interprets the use of lead packers as being
banned under Section 1417, it is reasonable to suggest that various other elements
common to water distribution systems - such as joints, valves, meters and fire hydrants -
must be lead free as well.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH8
Date Issued: June 1988
SUBJECT: Public Notification Requirements: Lead Notice/
Consecutive Systems
SOURCE: Ray Enyeart
Do consecutive public water systems have to furnish a special lead notice in accordance with 40
CFR Section 141.34 (located at 52 F_R 41549)?
Response:
A consecutive public water system is a public water system which receives water from
another public water system(s) that is subject to regulation under the National Primary
Drinking Water Regulations (NPDWRs). In addition, note that those consecutive water
systems that meet all four criteria set forth in SDWA Section 1411 (also located at 40
CFR Section 141.3) are not subject to the NPDWRs. Therefore, such consecutive
systems are not subject to the special lead notice requirements, which are part of the
NPDWR.
There is one other situation in which a consecutive system is not required to issue a
special lead notice. The special lead notification requirements apply to all those public
water systems that are Community Water Systems (CWS) and Non-Transient Non-
Community Water Systems (NTNCWS) [see 40 CFR Section 141.34(a)]. The issuance
of a special lead notice by a public water system "...is not required if the system
demonstrates to the state that the water system, including the residential and non-
residential portions connected to the water system, are lead free." [40 CFR Section
141.34(a)(2)].
An important statement providing further clarification, with respect to the special lead
notice, is set forth in the preamble of the final rule [52 FR 41544]:
"EPA expects-the owner or operator of a public water system
which is subject to the public notification requirements for lead,
and which provides water to another community or non-transient
non-community water system, to provide one-time notice by letter
to the receiving system. The receiving system, in turn, must
provide its customers public notice concerning lead in compliance
with the lead public notification requirements." [emphasis added].
In summary, those public water systems that are CWS and NTNCWS, including such
consecutive public water systems, are required to issue the special lead notice. Those
public water systems (including consecutive systems) that meet the four SDWA Section
1411 criteria, and/or meet the conditions set forth in 40 CFR Section 141.32(a)(2), are not
required to issue the special lead notice.
1
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH9
Date Issued: July 1988
SUBJECT: Determination of Vulnerability to VOCs
SOURCE: RayEnyeart
A State department of health intends to develop and implement regulations for public water
suppliers in their state. The State has primacy for the National Primary Drinking Water
Regulations (NPDWRs) and, specifically, is involved in the development of regulations for the
monitoring of volatile synthetic organic compounds (VOCs), as found in 40 CFR Section 141.24
(52 ER 25712).
Pursuant to Section 141.24, each State must determine the vulnerability of each public water
system, based upon the assessment of five factors [Section 141.24(g)(8)(iv)]: 1) previous
monitoring results; 2) number of persons served by the public water system; 3) proximity of a
smaller system to a larger system; 4) proximity to commercial or industrial use, disposal, or
storage of volatile synthetic organic compounds; and 5) protection of the water source. If a
public water system has several sources of drinking water, does the State have the ability to
determine/designate vulnerability on a source-by-source basis, or must the State consider the
whole system "vulnerable," if one of the sources is vulnerable?
Response:
EPA's direct answer to the question is -- no, a State does not have to classify an entire
system vulnerable if any one of its sources is vulnerable.
The concept of vulnerability was conceived to allow States to tailor monitoring
frequencies to differing needs. A water supply which is not vulnerable to contamination
by certain chemicals should not need to monitor for those chemicals as frequently as
systems which are vulnerable. Some systems may have sources that are located in very
different places/locations, and there may be a significant difference in the amount of
vulnerability to potential sources of VOC contamination.
It would be consistent with this concept to allow for tailoring of monitoring frequencies
to individual sources as well, if the conditions or configurations of the water supply and
the method of sample collection make such tailoring appropriate. An obvious example is
the case where a single water system has several sources with separate distribution
systems. It would be logical to allow the vulnerability of each source to dictate the
monitoring frequencies.
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WSGH9
In most cases, however, such distinct separation will not occur. In those instances, where
multiple sources feed into a common distribution system, the entire water system will be
at risk of contamination from any one of the sources. In such systems the structure of the
sample collection program will control whether vulnerability determination by source is
appropriate.
a) In instances where the individual sources are monitored prior to mixing with any
other sources, then the vulnerability of each source and the results of previous
analyses can be used to determine the monitoring frequency for that source.
Different sources within a single system may have different monitoring schedules.
b) In instances where monitoring is done after the sources have combined, either
before or after treatment, then vulnerability of the entire system is determined by
the most vulnerable source. All sources within the system would have to monitor
at the frequency specified for that "most vulnerable source."
It should be clear, however, that if VOCs are ever detected in any one source, and the
water system does not have separate distribution systems, then the entire water system
automatically becomes vulnerable under Section 141.24(g)(8)(v), and all sources must
monitor at the accelerated frequency (quarterly). If VOCs ever exceed the MCL in any
one source and the system does not have separate distribution systems, then the entire
water system is out of compliance as specified hi Section 141.24(g)(9).
Note: Rule citations are incorrect, since the Rule has been revised. However, the
concepts are still up to date.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH10
Date Issued: July 1988
SUBJECT: Scope of NPDWR Coverage
SOURCE: Ray Enyeart
A forest products company employs 50 workers on a lumbering project for 90 days in an isolated
region. The location of the project prevents the delivery of drinking water from a public water
supply system via pipeline. As a result, the project's drinking water supply must be trucked into
the project area. Upon arrival, the water is stored hi large tanks and then distributed to various
parts of the project as needed. Must the operator of this project comply with SDWA regulations
that are" applicable to public water suppliers? Or, is the owner/operator of the project simply a
customer of the water supplier that trucks in the water? Further, is the truck regulated under the
SDWA?
Response:
The lumber camp water supply is, by the Safe Drinking Water Act (SDWA) definition, a
public water system (PWS). However, not all PWSs are covered by the National Primary
Drinking Water Regulations (NPDWRs). Section 1411 of the SDWA and Section 141.3
of the NPDWRs specify the coverage. In short, if the water system at the lumber camp:
a) does not collect, treat, or sell the water, b) obtains all of the water from (but is not
owned or operated by) a PWS which is covered by the NPDWRs, and c) does not convey
passengers in interstate commerce, then the system is not subject to the NPDWRs. If
ANY of these conditions are not met then the lumber camp's system is subject to the
NPDWRs.
The truck which transports the drinking water to the lumber camp is, in EPA's opinion, a
"water hauler" and is also a PWS (see Water Supply Guidance #35, dated November 26,
1976). However, like the water system at the lumber camp, it is not subject to the
NPDWRs as long as it meets all of the conditions described in the above paragraph.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH11
Date Issued: September 1988
SUBJECT: Effective Date of the Lead Ban
SOURCE: Betsy Devlin
When was the lead ban effective? Was it effective on the date enactment of the Safe Drinking
Water Act Amendments (June 19,1988), or on the date States must begin enforcing the ban
(June 19,1988)?
Response:
Section 1417(a)(l) of the SDWA Amendments states that the prohibition of "...any lead
pipe, solder, or flux which is used after the enactment of the Safe Drinking Water Act
Amendments of 1986 shall be lead free..." (June 19,1986 enactment). In addition, in a
letter written by EPA Administrator Lee Thomas to Robert Kerrey, Governor of
Nebraska (September 16,1986), Mr. Thomas states that "Effective immediately, the use
of certain lead solder, flux, and pipes in the installation and repairs of public water
systems, and in residential or non-residential plumbing connected to a public water
supply system, is prohibited."
Therefore, the lead ban was officially effective June 19,1986.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH12
Date Issued; September 1988
SUBJECT: Lead Ban Enforcement
SOURCE: Chet Pauls
A State official submits the lead prohibition certification to the Regional administrator. The
certification says that the prohibition must be enforceable throughout the State. In addition, the
State "must demonstrate effective enforcement activity in subsequent years", as stated in the
State Implementation and Enforcement of the Lead Prohibition and Lead Public Notice
Requirements of the Safe Drinking Water Act - policy guidance from Michael Cook, Director,
Office of Drinking Water, to Rebecca W. Hanmer, Acting Assistant Administrator for Water.
The official is unclear on the meaning of "subsequent year." It does not clearly define when the
demonstration is required. Exactly when must the State demonstrate satisfactory enforcement
activity?
Response:
Section IIB (2) of this guidance (page 7) is quite clear in its explanation that subsequent
years refers to all years following an initial certification in FY 1989. It says: "InFY
1990 and beyond, States must have initial certification approval and must also
demonstrate effective lead ban enforcement to receive their full Public Water System
Supervision (PWSS) grant. The certification should account for any unique State
authorities or situations."
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH13
Date Issued: September 1988
SUBJECT: Marketing and Advertising Tactics and Techniques
SOURCE: Charlene Shaw
What is the EPA doing to discourage or prevent Point of Use (POU) distributors from misleading
the public through false or distorted claims regarding EPA's involvement with their product?
Response:
It has come to the attention of the Office of Drinking Water that the EPA and the Safe
Drinking Water Hotline are receiving many calls concerning home water treatment units.
One company, the National Safety Association, seems to have surfaced as a front runner
in consumer inquiries and complaints. Apparently, they have been searching the U.S. for
distributors for their product. These potential distributors and their customers have been
calling the EPA for more information on the unit and its "approval" by the EPA. A tape
is provided to potential buyers showing the EPA logo along side the company logo
implying a partnership in providing a quality product.
Action to Date
At the request of Peter Cook, Deputy Director, Office of Drinking Water, Charlene Shaw
(ODW) contacted the Federal Trade Commission to find out if this company was
violating any FTC rules by operating in this manner. She spoke with Joel Winston (FTC)
and he indicated his interest hi pursuing their advertising practices. The case was
assigned to Steve Toporoff (FTC) for investigation.
Information Gathering
Mr. Toporoff (FTC) indicated that it was necessary to begin gathering information to
support a case. He suggested that whenever possible, the name, address and phone
number of concerned individuals telephoning the Safe Drinking Water Hotline or the
EPA should be recorded and sent, through Charlene Shaw's office, to him.
Any offer by the Hotline caller to send printed material should be encouraged. Mr. Toporoff
asked that the Hotline suggest the caller send a formal complaint to him at the following address:
Mr. Steve Toporoff
Federal Trade Commission
Division of Marketing Practices
6th Street and Pennsylvania Ave., N.W.
Washington, D.C. 20580
(202)326-3135
1
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH14
Date Issued: September 1988
SUBJECT: Purpose and Applicability of Maximum Contaminant Level
Goals (MCLGs)
SOURCE: Betsy Devlin
Why are Maximum Contaminant Level Goals (MCLGs), which are non-enforceable, codified in
Title 40 CFR Part 141, Subpart F?
Response:
The Safe Drinking Water Act (SDWA), as amended in 1986, requires EPA to set MCLGs
simultaneously with the promulgation of the MCLs. Therefore, MCLGs appear in the
CFR because they are a required portion of the Office of Drinking Water (ODW)
regulations. They represent an aspirational health goal at which no known or anticipated
adverse health effects would occur, allowing an adequate margin of safety. Thus,
MCLGs are an important source of information to many of those regulated by SDWA.
NOTE: This response slightly differs from the version published within the September
1988 Monthly Report. The Office of Drinking Water edited the original response.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH15
Date Issued: October 1988
SUBJECT: Determination of MCLGs and MCLs
SOURCE: Jennifer Orme
How does the EPA establish the MCLG and MCL for a particular contaminant? More
specifically, what level or range of health risk is considered when establishing the two levels?
Response:
An MCLG is a maximum contaminant level goal, which is an aspirational goal. An
MCLG indicates the ideal level of protection that can be provided against any adverse
health effects that may be experienced after exposure to a given contaminant through
drinking water. The EPA determines a level for each contaminant, which is considered
an "acceptable level of risk" for all members of the population.
These levels will vary according to the health effects associated with each contaminant.
For non-carcinogenic contaminants, the MCLG is based on the Agency Verified
Reference Dose, adjusted for drinking water exposure. For known or probable
carcinogens, there is no threshold level that is considered "acceptable." Upon direction
from Congress, the EPA set MCLG's for carcinogens at "zero."
The EPA also establishes a maximum contaminant level (MCL) or specifies a treatment
technique for each contaminant.
Unlike the MCLG, the MCL is an enforceable regulation that the EPA considers
practically and feasibly attainable; the MCL must be maintained by the PWS. In many
cases, such as the non-carcinogenic contaminants, the MCL is equivalent to the MCLG,
because the EPA believes that the PWS can provide this level of protection. For
carcinogenic contaminants, however, the Agency realizes that it is most likely impossible
to completely eliminate the contaminant and does not set an MCL at "zero." Rather, the
EPA sets a level that can be attained, given available technology and resources. The level
usually falls into the excess cancer risk range of 1 in 10,000 (lO^4) to 1 in 1,000,000
NOTE: This response slightly differs from the version published in the October, 1988
Monthly Report. The Office of Drinking Water determined a need to re-evaluate the
original response.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH16
Date Issued: 'October 1988
Date Revised: June 1998
Revised by: Judith Fraser
SUBJECT: Effect of the Lead Ban on Sale of Plumbing Fixtures
Containing Lead Solder
SOURCE: Peter Lassovszky
Section 1417(a) of the SDWA established a ban on the use of lead pipes containing more than
eight (8) lead and solder and fluxes containing more than 0.2 percent lead. A faucet
manufacturer markets a certain product across the country. The product is a do-it-yourself unit
which has plastic connections, hence no need for soldering. However, a consumer safety
pamphlet, included with the faucets, informs the buyer that small amounts of lead solder are used
to connect and seal joints inside the unit, thus lead exposure is a possibility. If the faucet was
manufactured prior to the effective date of the lead ban, can it still be sold to consumers at
present? And if the faucet was made after June 19,1986, was it illegal for the manufacturer to
use lead solder and, again, can the product be marketed?
Response:
Section 1417 of the Safe Drinking Water Act (SDWA) prohibits the installation of any
pipe, solder and flux in the installation or repair of any public water system, or any
plumbing in a residential or non-residential facility connected to a public water system.
In addition to the SDWA, Congress amended Section 4 of the Federal Hazardous
Substances Act (FHSA) to prohibit the introduction of any lead solder into interstate
commerce which has a lead content in excess of 0.2 percent unless, the solder
prominently displays a warning label stating the content of the lead solder, and a warning
regarding the prohibited use of such solder in the joints or fittings of any private or public
potable water system. 15 U.S.C. § 1263(k)
If faucets which contain lead solders used to connect and seal joints inside the unit are
introduced into interstate commerce, they have to display a warning label to comply with
the FHSA, regardless of the date of their manufacture. The consumer safety pamphlet
included with the faucets should include identical language contained on the warning
label. In its present form, the safety pamphlet could be easily misinterpreted by the
consumer, who may not be aware that it is not legal to install such a faucet into his
household plumbing system.
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WSGH16
The faucets that were delivered to the distributor and retailer before the effective date
of the lead ban, could be legally sold locally within the State without displaying warning
labels. The same would apply to faucets manufactured and sold within the same State.
However, as stated in the SDWA, installation of such faucets into any plumbing
connected to a public water system would be illegal.
In summary, it is not federally illegal for the manufacturer to use lead solder hi the
faucets. The product can also be legally marketed, provided that the labeling provisions
prescribed hi the FHS A are met. However, some States may have introduced more
stringent requirements prohibiting the sale and marketing of these faucets. Consumers
should not install these faucets into their drinking water supply, unless the manufacturer
certifies that the solder used to connect and seal joints inside the unit is lead free.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH17
Date Issued: 'October 1988
SUBJECT: Household Refrigerators and Lead Contamination
SOURCE: Peter Lassovszky
Some home refrigerators have drinking water taps installed on the door. These refrigerators are
directly connected to the household plumbing hi order to continually provide users with cold
water and ice. The water is stored in a reservoir inside the unit.
Considering recent research on exposure to lead via water coolers and "standing water," this
situation raises several issues. From what materials are refrigerator reservoir tanks made (i.e.,
lead, plastic, steel)? Since the water is used only for drinking, it is reasonable to believe that the
service line gets flushed less often than a common kitchen tap and water sits in the line longer.
Thus, users drink "standing water" more often. Does the use of these refrigerators increase a
consumer's risk of exposure to lead in drinking water?
Response:
Manufacturers indicate that the refrigerator reservoir tanks are made of plastic. The
components of the device which produce the ice cubes include materials consisting of
plastic and stainless steel. The "service line" providing water to the refrigerator consists
of a copper tube. The "service line" is connected to the refrigerator and the plumbing
with compression fittings.
Based upon the above information, the EPA concludes that it is unlikely that any lead is
contributed to the consumer's drinking water from the refrigerator's ice making
mechanism or from the cold water reservoir. If the refrigerator is attached to home
plumbing which contains lead, it is possible that long standing times of water in pipes
before the water enters the refrigerator may result in elevated levels of lead in water or ice
dispensed by the refrigerator. The likely sources of lead to the drinking water may be
from the household plumbing, or possibly from the compression fittings, provided they
are made of brass.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH18
Date Issued: December 1988
Date Revised: June 1998
Revised by: Jennifer Melch
SUBJECT: Definition of a PWS (Homes with Individual Wells)
SOURCE: Betsy Devlin
A private landowner owns a cluster of 15 separate homes, located on 15 separate lots. The
landowner rents out each home, and provides drinking water to each home by means of a
groundwater well. Each home has its own well and the landowner operates each well.
Is this landowner a supplier of water? Are these wells subject to the Safe Drinking Water Act
(SDWA) and the National Primary Drinking Water Regulations (NPDWRs)?
Response:
The terms "public water system" and "supplier of water" are defined in the Safe Drinking
Water Act (SDWA). A public water system is "a system for the provision to the public of
water for human consumption through pipes or other constructed conveyances, if such
system has at least 15 service connections or regularly serves at least 25 individuals.
Such term includes (A) any collection, treatment, storage, and distribution systems under
control of the operator of such system and used primarily in connection with such system,
and (B) any collection or pretreatment storage facilities not under such control which are
used primarily in connection with such system".
A "supplier of water" is "any person who owns or operates a public water system."
In the case presented, the wells are not connected to one another; each well serves only
one home. Thus, there is no "system for the provision to the public of water for human
consumption through pipes or other constructed conveyances" which has at least 15
service connections or regularly serves at least 25 individuals. As a consequence, the
wells do not constitute "public water system," and the landowner is not a "supplier of
water" within the meaning of the Act. Therefore, the landowner (and the wells) are not
subject to the requirements of the SDWA and the NPDWRs. Of course, they would be
subject to any State regulations on private wells and the homeowner should consult the
State or local health department to determine what these requirements are.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH19
Date Issued: December 1988
SUBJECT: Lead Ban
SOURCE: Betsy Devlin
Section 1417 of the Safe Drinking Water Act (SDWA) prohibits the use of lead pipes, solder, and
flux any time after the enactment of the SDWA amendments of 1986. However, mis section also
requires States to enforce the lead ban no later than 24 months after enactment (June 19,1988).
What recourse does a homeowner have if lead solder was installed in his home after the
enactment date, but prior to the enforcement?
Response:
(A) The use of lead pipes, solder, and flux was banned by the SDWA effective June
1986. Therefore, any plumber, general contractor, etc. who used lead solder, pipe
or flux after that date is iri:vitifattion of federal law. However, EPA's general
enforcement authorities (Section 1414) are, by the terms of the statute, limited to
violations of National Primary Drinking Water Regulations (NPDWRs)
promulgated under Section 1412 of the SDWA. Since the lead ban is a
requirement of Section 1417, not an NPDWR requirement, EPA cannot bring an
administrative or judicial action under Section 1414 when there is a violation of
the lead ban.
(B) EPA always has the option of proceeding under its emergency powers in Section
1431. This provision allows EPA to, among other things, issue orders as
necessary to protect health of persons and commence civil actions for appropriate
relief. The provision includes a restraining order or permanent or temporary
injunction, when it finds that a contaminant which is present in or is likely to enter
a public water system may present an imminent and substantial endangerment to
the health of persons. Section 1431 clearly states that this provision applies
"notwithstanding any other provision of this title." Therefore, even though the
Section 1414 authorities cannot be used to enforce the lead ban, Section 1431 is
available provided EPA can make the required findings.
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WSGH19
(C) The homeowner should consult State law to determine if there is a State or local
ban on lead in effect, when the ban became effective, if there is a State agency
that is responsible for enforcing it, and what the penalties are for violating the
State ban. Two situations arise:
1) If the state does not have a lead ban or if the lead was installed after June
19,1986, but before the State's law was effective, the homeowner may not
have a specific statutory or regulatory remedy under State law. In such
cases, the homeowner may wish to consider a citizen suit under Section
1449 of the SDWA alleging that the contractor violated Section 1417 of
the SDWA. A suit based on tort law concepts against the plumber (or
contractor) in State court may also be appropriate. The homeowner may
wish to notify EPA and have the Agency investigate to determine if the
situation is appropriate for a 1431 order (as discussed above).
2) If the State has a lead ban and it was hi place when the lead was installed,
the homeowner can use the remedies and procedures under the State law in
addition to the remedies discussed in (a) above.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH20
Date Issued: February 1989
SUBJECT: Lead Ban
SOURCE: Betsy Devlin
A person builds a new home after June 19,1986, the effective date of the lead ban. The
homeowner discovers that lead solder was used to install plumbing and confronts the contractors
about it. The builders inform the homeowner that the local government permitted them to install
lead solder in homes after the deadline, provided they had already purchased it prior to the
deadline. The builders claim they were allowed to use up their supply of lead solder first, and
then switch to non-lead type thereafter. The homeowner would like the lead solder removed and
new plumbing installed.
What legal rights does the homeowner possess? Can a citizen pursue an action against the
contractor? The local government?
Response:
The federal lead ban was effective June 19,1986. Therefore, by installing lead solder
after that date, the contractor violated a federal law. The homeowner could bring a
citizen suit under Section 1449 of the Safe Drinking Water Act to require the contractor
to comply with the lead ban. (It should be noted that the citizen suit provision appears to
allow for injunctive relief only; there is no penalty provision). In any such suit, the
contractor is likely to raise as a defense, that the local government permitted him or her to
install lead solder. The citizen would have to argue that the local law was inconsistent
with the federal law and that federal law would prevail in this case; local law cannot
"undo" a federal law.
The homeowner may also notify EPA of the problem, EPA could potentially withhold
five percent (5%) of the State Public Water System Supervision (PWSS) grant and/or
consider issuing an emergency order under Section 1431 (if the requisite findings could
be made).
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WSG H21 is outdated and has been deleted.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH22
Date Issued: August 1989
SUBJECT: Meaning of "Human Consumption" and "Graywater Uses"
as it Relates to Public Water Systems
SOURCE: Betsy Devlin
On February 26,1988, the United States District Court settled the U.S. v. Midway Heights case
in part by claiming "human consumption includes drinking, bathing, showering, cooking,
dishwashing, and maintaining oral hygiene." Do these statements claim that inhalation alone can
constitute human consumption? For example, a hospital has its own well which it uses solely for
laundry purposes (the rest of its water is supplied by a Public Water System), would this use
constitute human consumption? In addition, what types of water consumption are included hi
EPA's definition of "graywater uses?"
Response:
In U.S. v. Midway Heights County Water DistrictT the water district contended as part of
its defense that it was not a public water system and thus not subject to the Safe Drinking
Water Act (SDWA) or the National Primary Drinking Water Regulations (NPDWRs)
because it did not supply water for "human consumption," that is, drinking. The court, as
noted above, found that human consumption was more than just drinking. Moreover, the
court found that the defendant knew or should have known that the water was being used
for human consumption (due to the pipes running into the homes and other facts specific
to this case) and that the agreement between the district and the customers which
"apparently purports to limit the use(s) of defendants water to irrigation is ineffective to
take defendant's water system out of reach of the Safe Drinking Water Act which was
enacted to protect the public health."
In its opinion, the court did not expressly deal with the question of inhalation as it was
not dealing with types of exposure to contaminants. It is our opinion, however, that the.
court was interpreting consumption in a broad sense; that is, human consumption includes
all normal, everyday purposes. If an individual uses the water provided by a system for
bathing or dishwashing, arguably, that individual would be exposed to contaminants in
the water through inhalation. In this sense, then, inhalation could be considered
consumption.
Considering the example of the hospital which has its own well used only for laundry
purposes, laundry arguably fits under the definition of human consumption. Therefore,
this supply is subject to the SDWA and the NPDWRs. If, however, the hospital could
demonstrate that the system for the laundry is completely separate from the system
providing the water for patient and staff use, then an argument could be made that the
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WSGH22
system used for laundry purposes may not be subject to the NPDWRs. In older to
demonstrate this complete separation, the hospital would have to show, that there are
different plumbing systems, that there are no "laundry" sinks or faucets available for
patient or staff use, and that there are no interconnections whatsoever. However,
hospitals are often required to have back-up systems to provide water for patients and
staff in case of an emergency. If the laundry system is in fact the back-up system, then it
would clearly be for "human consumption" and would be subject to the SDWA and the
NPDWRs (if it satisfied the definition of a NCWS; i.e., was used for the requisite number
of days per year).
NOTE: This issue specifically addresses Gray-Water Systems as Public Water Systems
and therefore replaces Issue Number One and Two of Edition Four's Section V. That
section has been renamed "TOTAL COLIFORM RULE REQUIREMENTS."
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH23
Date Issued: August 1989
Revised: September 1998
Revised by: Joshua Joseph
SUBJECT: Variances and Administrative Orders
SOURCE: Betsy Devlin
Section 1415 of the Safe Drinking Water Act provides for issuing variances. Section
1415(A)(1)(A) states that "A variance may only be issued to a system after the system's
application of the best technology, treatment techniques, or other means, which the
Administrator finds are available (taking costs into consideration)." If a system operates in
exceedance of an MCL and the State issues an Administrative Order (AO) requiring the system
to comply with the MCL according to a compliance schedule, is it also necessary for the State to
issue a variance? Or, may the State issue a variance after the system has applied the best
available technology and still cannot meet the MCL?
Response:
The Agency has promulgated regulations to revise the existing regulations regarding
SDWA variances and exemptions. The rule is effective September 14,1998 and includes
procedures and conditions under which a primacy State/Tribe or the EPA Administrator
may issue small system variances or exemptions.
The Act provides for variances for two distinct situations:
(1) General Variances—Given on the condition that systems install the best available
technology (BAT) in spite of the fact that due to source water even BAT will not get full
compliance.
(2) Small Systems Variances—Available if EPA has listed a variance technology and if
the state determines that the system cannot afford to comply through other means. It is
required that the system install and operate the variance technology. Also, terms and
conditions must be protective of human health.
As provided under the Act, under certain conditions, variances are available to public
water systems that cannot (due to source water quality, or, in the case of small systems,
affordability) comply with the national primary drinking water standards. Variances
generally allow a system to provide drinking water that may be above the maximum
contaminant level on the condition that the quality of the drinking water is still protective
of public health. In the case of small system variances, the duration of the variance
generally coincides with the life of the technology. An exemption, on the other hand, is
intended to allow a system with compelling circumstances an extension of time before the
system must comply with applicable Safe Drinking Water Act requirements. An
exemption is limited to three years after the otherwise applicable compliance date,
although extensions up to a total of six additional years may be available to small systems
under certain conditions.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH24
Date Issued: October 1989
SUBJECT: Public Notification Requirements
SOURCE: Carl Reeverts
Title 40 CFR Section 141.32 sets forth public notification requirements for public water systems
operating under exemptions or variances. While this section defines specific notification
requirements concerning time schedules and notification channels, it does not address the public
notification requirements for consecutive public water systems.
In the case of a consecutive system receiving water from a supplier operating under an
exemption, who is responsible for informing the customers of the consecutive system that the
supplier has an exemption from the SDWA requirements, the primary water system or the
consecutive system?
Response:
A consecutive system is a public water system and must meet all the National Primary
Drinking Water Regulations (NPDWRs) that the supplier must meet. In the circumstance
where the supplier has an exemption but the consecutive system does not, the consecutive
system is responsible for notifying its customers after receiving notice of the exemption
from the primary supplier.
In the preamble of the final Public Notification Rule (related to the special lead public
notice), the water supplier which supplies or sells water to another community or non-
community water system is expected to provide notice to the receiving system. In turn,
the receiving system is expected to provide its customers with a public notice (52 EK
41544).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH25
Date Issued: March 1990
SUBJECT: Corrosion Control Devices and the PWS Program
SOURCE: Betsy Devlin
Section 1411 of the Safe Drinking Water Act (SDWA) specifies four criteria [141 l(l)-(4)] used
to determine whether or not a public water system (PWS) is subject to the: The PWS must meet
all four criteria to be exempt from the NPDWRs. Specifically, one of the criterion set forth in
Section 1411(1) states that a PWS must consist of only distribution and storage facilities (and
does not have any collection and/or treatment facilities).
Furthermore, such facilities adding corrosion control agents to their drinking water supply are
considered to be a public water system, and thus are not exempt from regulation since all four
criteria are not met (see Water Supply Guidance #37, dated December 20,1976).
With respect to such provisions, a water-conditioning company has been contracted to treat the
water of PWS customer whose structure is an office/residential building. The building serves
more than 25 persons. The company treats the water by either renting or otherwise providing a
point of entry device which they themselves will maintain. In this case, Water Supply Guidance
#37 requires that the building be regulated as a PWS under the NPDWRs. If so, is the building
owner, or the water-conditioning company, considered to be the PWS owner/operator?
Response:
Water Supply Guidance #37 (December 8,1976) addressed the question of the definition
of treatment and stated that any person (as defined by the SDWA) who adds any chemical
to its drinking water supply is a public water system and is covered by the NPDWRs. In
coming to this conclusion, the guidance provided useful information on the definition of
treatment and treatment facilities.
The standard dictionary definition of "to treat" is "to subject to some agent or action to
bring about a particular result." Water can be "treated" with a chemical agent, such as
sodium silicate, in order to bring about a reduction in corrosivity.
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WSG H25
The addition of such a substance necessarily changes the chemical composition of the
water into which it is added. As such, the addition of chemicals into drinking water to
reduce corrosivity should be considered "treatment" within the meaning of SDWA,
Section 1411 (a).
The legislative history of Section 1411 makes it clear, moreover, that Congress only
intended to exempt those public water systems, such as hotels or trailer parks, which
"merely" store and distribute water..."
Furthermore, the standard dictionary definition of a "facility" is "something designed to
serve a specific function." Presumably, the on-site addition of corrosion-reducing
chemicals into a water supply requires devices, holding tanks, or units to regulate the
mixture.
Therefore, the addition of corrosion-reducing substances into water supplies presumably
requires "treatment facilities" within the meaning of the SDWA.
Generally, the term "treatment facilities" should be interpreted broadly. Otherwise, the
unregulated proliferation of individual on-site chemical treatment of drinking water
supplied by public water systems could seriously interfere with efficient regulation of the
quality of drinking water, contrary to the purpose of the SDWA to regulate all public
water systems "to protect health to the maximum extent feasible."
Consistent with this guidance, then, if a building owner or operator installed a point of
entry or point of use device, the device would be considered a "treatment facility."
Therefore, the building would become a public water system (assuming it met the
requirements of the definition; i.e., had at least 15 service connections or regularly served
at least 25 individuals) and the building owner/operator would become a supplier of water
as defined by the SDWA. The system would be subject to the SDWA and the NPDWRs.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG H26
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H26
Date Issued: March 1990
SUBJECT: Possible Toxicity of Aluminum
SOURCE: Jennifer Orme
Aluminum, which is listed for possible development as a primary drinking water regulation in
1991, was proposed in 54 F_R 22062 (May 22,1989) at a Secondary Maximum Contaminant
Level (SMCL) of 0.05 mg/1. This level is to prevent post-treatment precipitation in the
distribution system. Considering SMCL's are based upon cosmetic or aesthetic effects, many
concerns exist regarding the possible toxic levels of aluminum. Further guidance is needed in
order to answer the following questions.
1. • At what level, if any, does aluminum become toxic?
2. What adverse health effects results from aluminum exposure?
3. What are the high risk groups?
Response:
In assessing the potential risks of ingesting aluminum in drinking water, EPA has
determined the following:
Aluminum, which is the most abundant metal and the third most abundant element
(behind carbon and silicon), is an ever present substance with a variety of uses. Although
aluminum compounds (e.g. aluminum/sulfate) are used as coagulants in drinking water
treatment, food is the major source of exposure. Food contributes anywhere from 9-30
mg/d, while drinking water accounts for 0.02-4 mg/d (assuming consumption.of 2L/d)
and finally, air which is measured in the very low ug/cubic meter range. In general, the
adverse health effects from ingested aluminum are not clear. Further research is needed,
and EPA has initiated studies which they hope will determine what effects, if any, result
from the ingestion of aluminum. Aluminum has been linked to some neurological
disorders such as Alzheimer's Disease. There is, however, no conclusive evidence that
ingested aluminum causes the disease.
Again, this issue is controversial and under investigation. Persons with chronic or long
term kidney disease seem to make-up the high risk group. Persons with kidney disorders
should consult their physician regarding aluminum levels.
In conclusion, the toxicity of ingested aluminum is a matter of controversy and
conjecture. In addition to the U.S., aluminum has not been regulated in drinking water by
Canada or Europe. Until issues concerning aluminum toxicity (and specifically
neurotoxicity) are resolved, the proposed SMCL of 0.5 mg/1 is recommended. This
practice would assure optimum aesthetic quality of the water and obviate any possible
health concerns that might exist.
1
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH27
Date Issued: March 1990
Revised: July 1,1998
Revised by: Jennifer Melch
SUBJECT: Treatment Facilities as Public Water Suppliers
SOURCE: Betsy Devlin
Title 40 CFR Section 141.3 establishes the coverage and scope of the National Primary Drinking
Water Regulations (NPDWRs). This section lists four conditions which a public water
system—as defined in Section 141.2 (as amended by the Primacy Rule [63 FR 23361, April 28,
1998])—must meet in order to qualify for exclusion from the NPDWRs. One of the four
conditions states that a water system must consist [141.3(a)] "...only of distribution and storage
facilities (and does not have any collection and treatment facilities)" [emphasis added].
Water Supply Guidance No. 37 (December 8,1976), contains a discussion of the definition of
treatment. While this discussion provides a basis for interpreting the term with respect to
chemical corrosion control treatment, it does not establish an overall working definition. For
example, the discussion does not explicitly state whether "non-chemical" technologies (e.g.,
physical treatment) are considered to be treatment. In addition, literal interpretation of the
definition would classify typical point-of-entry (POE) systems, such as lime-soda water
softeners, as treatment. Is it the intent of EPA to regulate this type of system?
If so, implementing POE methods of corrosion control, discussed in Lead in Schools' Drinking
Water (EPA 580/9-89-001), would seemingly result in those schools/facilities being classified
and therefore regulated as consecutive public water systems.
The existing definition of treatment also appears to be no longer sufficient in addressing potential
situations resulting from the recent proliferation of point of use (POU) water treatment systems.
For example, if an apartment landlord owns and maintains POU devices in his rental units, is he
to be regulated as a public water system?
Response:
Water Supply Guidance No. 8 A (December 8,1976) addressed the question of the
definition of treatment and stated that any person (as defined by the SDWA) who adds
any chemical to its drinking water supply is a public water system and is covered by the
NPDWRs. In coming to this conclusion, the guidance provided useful information on the
definition of treatment and treatment facilities.
The standard dictionary definition of "to treat" is "to subject to some agent or action to .
bring about a particular result." Water can be "treated" with a chemical agent, such as
sodium silicate, in order to bring about a reduction in corrosivity.
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WSGH27
The addition of such a substance necessarily changes the chemical composition of the
water into which it is added. As such, the addition of chemicals into drinking water to
reduce corrosivity should be considered "treatment" within the meaning of SDWA,
Section 141 l(a). The legislative history of Section 1411 makes it clear, moreover, that
Congress only intended to exempt those public water systems, such as hotels or trailer
parks, which "merely store and distribute water..."
Furthermore, the standard dictionary definition of a "facility" is "something designed to
serve a specific function." Presumably, the on-site addition of corrosion-reducing
chemicals into a water supply requires devices, holding tanks, or units to regulate the
mixture.
Therefore, the addition of corrosion-reducing substances into water supplies presumably
requires "treatment facilities" within the meaning of the SDWA.
"Generally, the term "treatment facilities" should be interpreted broadly. Otherwise, the
unregulated proliferation of individual on-site chemical treatment of drinking water
supplied by public water systems could seriously interfere with efficient regulation of the
quality of drinking water, contrary to the purpose of the SDWA to regulate all public
water systems "to protect health to the maximum extent feasible."
Consistent with this guidance, then, if a building owner or operator installed a point of
entry or point of use device, the device would be considered a "treatment facility."
Therefore, the building would become a public water system (assuming it met the
requirements of the definition; i.e., had at least 15 service connections or regularly served
at least 25 individuals) and the building owner/operator would become a supplier of water
as defined by the SDWA. The system would be subject to the SDWA and the NPDWRs.
This approach, however, while consistent with existing policy, may result in a large
increase in the number of public water systems, especially as many buildings are
installing devices to improve the quality of their water; for example, many schools are
installing corrosion control to reduce the lead content of their drinking water to help
protect the health of the children. If all these buildings become public water systems
subject to all the regulations, we may discourage systems from trying to improve the
quality of their water. In addition, we would place a great burden on the States who will
be responsible for overseeing all these systems.
Therefore, while the systems described above are public water systems subject to the
SDWA and the NPDWRs, they nonetheless may be afforded certain monitoring
modifications if they are considered a "consecutive" water system. "Consecutive" water
systems are water systems that purchase water from another public water system. Under
federal regulations at 40 CFR 141.29, States have the flexibility to modify the monitoring
requirements to the extent that the interconnection of the systems justifies treating them
as a single system. This flexibility allows States considerable discretion to avoid
unnecessary compliance activities.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH28
Date Issued: May 1990
Revised: October 1998
SUBJECT: Compliance for Gross Beta Particle Activity
SOURCE: Greg Helms
Title 40 CFR, Section 141.26, sets forth provisions for the monitoring of radioactivity in
community water systems. Section 141.26(b)(l) states that compliance for gross beta particle
activity may be assumed without further analysis if the average annual concentration of gross
beta particle activity is less than 50 pCi/1 and the average annual concentrations of tritium and
strontium-90 are less than 20,000 pCi/1 and 8 pCi/1 respectively, provided, that if both
radionuclides are present the sum of their annual dose equivalents to bone marrow shall not
exceed 4 millirems/year. According to Section 141.26(b)(l)(i), if the average annual gross beta
particle activity exceeds 50 pCi/1, an analysis of the sample must be performed to identify the
major radioactive constituents present and the appropriate organ and total body doses shall be
calculated to determine compliance with Section 141.26. Are the constituents listed in Table B
of Section 141.25 the major constituents to be determined?
Response:
No, any radionuclide found in the samples that are listed in CFR 141.25(a) and have body
burdens listed in "Maximum Permissible Body Burdens...in Air or Water for
Occupational Exposure" (NBS Handbook 69 as amended August 1963, U.S. Department
of Commerce) is considered a major constituent as specified in CFR 141.16(b). While
the constituents listed are most likely to occur, "major constituents" refers to the specific
radioactive constituents hi the particular (or an equivalent) sample.
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WSG H29 is outdated and has been deleted.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG H30
GUIDANCE FROM HOTLINE COMPENDIUM
Date Issued: August 1990
Date Revised: December 1999
SUBJECT: Monitoring Requirements for Consecutive
Public Water Systems (Surface Water Treatment Rule)
SOURCE: Clive Davies
On June 29,1989, National Primary Drinking Water Regulations (NPDWRs) were promulgated
which established disinfection and filtration requirements for public water systems (54 FR
27846). These regulations are commonly referred to as the Surface Water Treatment Rule or
SWTR. In reference to the SWTR, the following question was raised:
How are consecutive public water systems required to meet the monitoring requirements of the
SWTR?
Response:
40 CFR, Section 141.29, deals with consecutive systems. This section gives primacy
agents the option to consider suppliers and consecutive systems as single systems for the
purposes of monitoring under any of the drinking water regulations. Therefore, a
primacy agent has the authority1 to consider a supplier and a consecutive system as a
single system, or as separate systems, for purposes of compliance with the monitoring
requirements of the SWTR and Total Coliform Rule (TCR).
For compliance with the requirements of the two rules, it will often be appropriate for the
primacy agent to consider the supplier and consecutive systems as a single system. The
requirements, under the SWTR, for source water monitoring, Concentration x Time (CT)
value determination, maintenance of entry point disinfectant residuals, dual disinfection
components, watershed control programs, operator qualifications, etc., will likely be the
responsibility of the supplier. Requirements for distribution system disinfectant residual
monitoring under the SWTR and for distribution system coliform monitoring under the
TCR will be the responsibility of both supplier and consecutive systems. If treated as one
system, the required monitoring plan must address both the supplier's and the consecutive
system's distribution system. Computation of compliance with the coliform MCL and
disinfectant residual requirements must also be based on the combined results of the
sampling from both the supplier and consecutive systems.
We believe, however, that because of the range of factors involved (e.g., the use of
booster chlorination, the possible existence of emergency surface water sources, the
relative sizes and capabilities of the parent and secondary systems, etc.) the decision of
how to treat a secondary system must be made on a case-by-case basis, and that the
primacy agent is in the best position to make that decision1.
'40 CFR §141.29 requires that primacy agents obtain EPA concurrence on decisions to
reduce monitoring for consecutive systems.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH31
Date Issued: August 1990
SUBJECT: NTNCWSs and Public Notification for Special Monitoring
SOURCE: Carl Reeverts
Title 40 CFR, Section 141.35, requires the owner or operator of a Community Water System
(CWS) on Non-Transient, Non-Community Water System (NTNCWS) to notify persons served
by the system of the availability of the results of sampling conducted under 40 CFR 141.40
(special monitoring for organic chemicals). This notification is to be accomplished by including
a notice in the first set of water bills issued by the system after the receipt of the results, or by
written notice withinjhree months after the receipt of the results.
Since NTNCWS normally do not bill their consumers, and are allowed to post notices hi order to
meet the public notification requirements under 40 CFR Section 141.32, would posting notices
of availability of the results of sampling fulfill the requirements of 40 CFR 141.35?
Response:
Although Section 141.35 does not specifically allow NTNCWS to post notices as an
option of meeting these requirements, it is EPA's intent that NTNCWS notify customers
in a manner that is most conducive to public education and appropriate to the situation.
Therefore, unless specifically precluded by the primacy State, posting a notice of
availability of monitoring results would be an acceptable method of written notification
where mail delivery is not appropriate. NTNCWS could also fulfill the requirements of
Section 141.35 by hand delivery of the notice of availability. For example, the written
notice could be included in the paychecks of workers being served by a NTNCWS.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH32
Date Issued: August 1990
Revised: February 1999
Revised by: Ed Thomas
SUBJECT: VOC Monitoring Requirements and the Blending of Separate
Water Supply Sources as a Form of Treatment
SOURCE: Susan MacMullin
Section 141.24(g)(l) of the VOC rule (52 FJL 25712) specifies that systems with ground water
supplies must samplejat points of entry to the distribution system that are representative of each
well. Furthermore, the preamble states that such ground water systems are required to sample at
those distributions system entry points that are located after any treatment (52 FJR. 25705). Is the
blending of water from two separate ground water sources considered to be treatment? If
blending is not considered treatment, the operator will need to sample at two locations prior to
where blending occurs. If blending is regarded as treatment, the operator will be required to
sample at a single location subsequent to where blending occurs.
Response:
The blending of two separate supply of sources is considered treatment in the context of a
system's ability to meet an MCL. A State may require a system to sample at each well
head prior to blending, however, the Federal regulations require systems to sample at the
point of entry to the distribution system. The sample may be taken at any point between
the treatment process (or blending) and the point of entry to the distribution system. It is
not, however, appropriate to blend sources of water in the distribution system.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH33
Date Issued: December 1990
SUBJECT: State Programs for Laboratory Certification
SOURCE: Baldev Bathija
Carl Reeverts
Title 40 CFR, Section 142.10 set forth the requirements for a determination of primary
enforcement responsibility. Specifically, Section 142.10(b)(3)(i) requires the establishment and
maintenance of a State program for the certification of laboratories conducting analytical
measurements of drinking water contaminants. Furthermore, Section 142.10(b)(3)(i) states that
the requirements of this section conducted at laboratories operated by the State and certified by
the Agency. As such the question is asked: can State primacy be maintained when the only
certified laboratories are privately owned and no State run laboratory is certified?
Response:
No, the State must maintain a principal State lab that is certified in order to retain
primacy. The principal State laboratory system must have the capability to analyze every
contaminant included in the drinking water regulation (40 CFR 142.10(b)(4)); however,
an individual laboratory that is part of a principal State laboratory system may be certified
for only one, several, or all the cited analyses. If a principal State laboratory contracts
with another laboratory, including a laboratory outside the State, to assume the lead role
in analyzing a regulated parameter (e.g., radiochemical contaminants) that contract
laboratory will, for the purposes of this manual, be considered part of the principal State
laboratory system.
In this case, the contract laboratory must be certified by EPA, unless the contract
laboratory is in another State, and that State has certified the laboratory for the
contaminants of interest, with the concurrences of the two affected EPA Regions.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WSG H34
GUIDANCE FROM HOTLINE COMPENDIUM
Date Issued: February 1991
SUBJECT: Repeat Monitoring Requirements for the Total Coliform Rule
SOURCE: Clive Davies
On June 29,1989, National Primary Drinking Water Regulations for Total Coliforms were
promulgated (54 EE 27544). Under the final rule, systems are required to collect repeat samples
for each total coliform-positive routine sample; three for systems collecting more than one
routine sample per month, four for systems taking one routine sample per month (Section
141.24(b)).
Section 141.24(b)(4) states that if one or more repeat samples is total coliform-positive, systems
must collect additional sets of repeat samples until total coliforms are not detected in a set of
repeat samples, or the system determines that the MCL for total coliforms has been exceeded and
notifies the State.
In some cases, a system may have determined that an MCL has been exceeded prior to taking a
second set of repeat samples. For example, if a system collects six routine samples per month,
one of which is total coliform-positive, and the system then takes a repeat set of samples
resulting in another total coliform-positive sample, the system is out of compliance.
In this case, would a system determined to be out of compliance after taking only one set of
repeat samples be required to take the additional set of samples as stated in Section 141.24(b)(4)?
Response:
Under the provisions of Section 141.21(b)(4), no further repeat monitoring for total
coliforms is required for the system in the above case. However, all positive samples
must be analyzed for fecal coliform or E. Coli. as required by 141.21(e)(l), whether or
not the MCL had been exceeded. Failure to conduct this monitoring is a Monitoring
Violation. If any total coliform-positive sample is found to be fecal coliform-positive or
E. Goli - positive, the system must notify the State. The State may then require additional
repeat monitoring even if the MCL has been exceeded.
The following sampling/analysis must always be done, even if the MCL has been
exceeded. All routine and repeat total coliform-positive samples must be speciated for
fecal coliforms or E. Coli. Also, all repeat samples must be taken for all routine total
coliform-positive samples. This additional monitoring after the monthly MCL has been
violated allows the State to determine if the acute MCL has also been violated.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH35
Date Issued: August 1991
Date Revised: December 1999
SUBJECT: Applicability of the SWTR and IBS WTR to Seawater Systems*
SOURCE: Clive Davies
How are systems, whose source water is seawater, regulated under the National Primary
Drinking Water Regulations (NPDWRs)? In order for seawater systems to convert source water
to potable water, a desalinization process must be applied. Distillation and reverse osmosis are
the common methods for desalinization of seawater. Considering the special treatment required
for seawater systems to produce potable drinking water, what, if any, regulations apply? For
example, are seawater systems required to comply with the Surface Water Treatment Rule
(SWTR) and the Interim Enhanced Surface Water Treatment Rule (IESWTR)?
Response:
Treatment for "Surface water" is regulated by the SWTR and IESWTR. The definition of
surface water for these rules is water open to the atmosphere and subject to surface
runoff. EPA believes that seawater sources are not, by virtue of their depths and volume,
generally affected by surface runoff. Accordingly, such sources would not come under
the definition of "surface waters." Moreover, seawater sources of drinking water are
generally treated by distillation or through reverse osmosis. These processes achieve a
removal or inactivation of viruses and Giarda cysts that far exceeds the levels required
under the SWTR. Additionally, the health risk from pathogens is generally much less
significant in seawater than in fresh surface water sources. Typically, pathogenic
organisms are quickly inactivated in sea water due to the high salt concentration. Also,
the rate of dilution of pathogens released into sea waters is generally much more
substantial than in fresh waters.
Once a state adopts regulations, interpretation of definitions and the scope of State
regulations is left to State discretion as long as any changes result in a regulation which is
at least as stringent as Federal requirements. EPA recommends to states that public water
systems using seawater sources not be required to comply with the SWTR. States should,
however, ensure that design and operating conditions of systems using seawater sources
are optimized.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H36
Date Issued: August 1991
SUBJECT: Health Advisory for Zinc
SOURCE: Bob Cantilli
(202)260-5546
The chemical zinc has a draft health advisory listed in the CSD April 1991 Health Advisory
Summary Table and is regulated as a secondary contaminant (found in 40 CFR 143.3).
Chemicals regulated as secondary contaminants are regulated as such because of aesthetic
reasons (taste, smelLcolpr) rather than health based reasons. Why then, does a chemical.
regulated as a secondary contaminant, have a draft health advisory?
Response:
A number of chemicals have health advisories even though they may never be regulated
for health based reasons. Zinc was listed on the original list of 83 contaminants to be
regulated in the 1986 SDWA amendments. The no-observed-adverse-effect level for zinc
is so high that this chemical will probably not be regulated. It was replaced on the
original list of 83 for this reason.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H37
Date Issued: August 1991
SUBJECT: Reporting Confluent Growth on Total Coliform Samples
SOURCE:
Paul Berger
(202)260-3039
Title 40 CFR sections 141.21(g) and 141.32 contain requirements for analytical methodology
and reporting under the Total Coliform Rule. Is confluent bacterial growth considered a
violation of the rule and how would it be reported?
Response:
If one or more total coliform colonies are detected, the sample must be reported as total
coliform-positive. If no coliforms are detected, the laboratory must invalidate the sample
(see 40 CFR 141.21 (c) (2)). The regulations do not specifically address how confluent
growth (with no detected coliforms) is to be reported, but the laboratory may record the
sample as "confluent growth."
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH38
Date Issued: August 1991
SUBJECT: Secondary MCL Range for Aluminum
SOURCE: Al Havinga
In the January 30,1991 Phase n Rule (56 FR 3526), the list of secondary contaminants was
published in 40 CFR Section 143.3. Aluminum was added to this list. Why does EPA specify a
range (0.05 - 0.2 mg/1) rather than a single value for the SMCL for aluminum?
Response: —. .-
On page 3573 of the Final Rule, EPA provides a discussion of its decision to specify a
range rather than a single value as the SMCL for aluminum. In short, EPA is
encouraging utilities to meet the optimal value of 0.05 mg/1. EPA is aware that varying
water quality and treatment situations may result in some systems unable to meet or have
difficulty meeting the 0.05 mg/1 level. Therefore, EPA established a range, with the
specific value being determined by the State for each system.
*Note: EPA is still evaluating this hotline guidance. There may be changes to this guidance
in the future.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H39
Date Issued: August 1991
SUBJECT: State Primacy over Federal Facilities
SOURCE: James Bourne
Betsy Devlin
Requirements for States with primary enforcement responsibility are found under 40 CFR
section 142. How do these requirements apply to the oversight of Federal facilities located
within the boundaries of a State with primacy?
Response:
If a State has primacy for public water systems, even if State regulations are more
stringent, the State has primacy over federal facilities. The 1977 SDWA Amendments,
section 1447, added language providing that, subject to a national security exemption,
each Federal Agency shall be subject to, and comply with, all Federal, State, and local
requirements, and administrative authorities. To support this change in prior policy the
congressional committee stated the following"... Furthermore, the committee intends
that Federal agencies comply with State, and local drinking water requirements and
regulations which are more stringent than the primary drinking water standards."
A state with primacy does not have jurisdiction over Indian Lands due to the Indian
status as "sovereign nations;" they have treaties with the United States. Therefore, the
federal government has jurisdiction over PWSs on Indian lands.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSHH40
Date Issued: August 1991
SUBJECT: Wilson's Disease and Copper
SOURCE: Lonnie Finkle
Jeff Cohen
In some publications, Wilson's Disease is listed as a health effect of copper. Does copper in
drinking water actually cause Wilson's Disease?
Response:
No. Wilson's Disease is an inborn disorder with copper metabolism, and is not caused by
copper in drinking water. Rather, individuals born with Wilson's Disease are at a higher
risk of experiencing toxic health effects due to copper metabolism, allowing
accumulation of copper hi the liver, brain, kidneys, and corneas causing hemolytic
anemia, neurological disorders and cornea opacity (56 FR31516). Also, the mandatory
health effects language in 141.32(e)(14) of 56 F_R 26460 (June 7,1991) states that copper
at high doses has been shown to cause stomach and intestinal distress, liver and kidney
damage, and anemia.
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H41 is outdated and has been deleted.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H42
Date Issued: December 1991
Revised: 12/99
SUBJECT: The Effectiveness of Slow Sand Filtration in Total
Coliform Removal
SOURCE: Stig Regli, OGWDW
(202) 260-7379
The Guidance Manual for Compliance with the Filtration and Disinfection Requirements for
Public Water Systems Using Surface Water was prepared by EPA to assist public water systems
in the implementation of the Surface Water Treatment Rule. Part 4.3.5, Section 4-19 of the
manual describes slow sand filtration design criteria. This section states that, "The effective sand
size should be between 0.15 mm and 0.35 mm rather than the current 0.30 mm to 0.45 mm."
However, citation #13 states that, "Significant decreases in total coliform removals were shown
at effective sand sizes less than 0.35 mm (Bellamy et al., 1985)." The design criteria seems to
contradict the Bellamy study evidence.
Was it EPA's intent to reduce effective sand size range to 0.15 mm - 0.35 mm despite the cited
evidence that total coliform removal decreases at sand sizes lower than 0.35 mm, or was the
Bellamy study incorrectly cited in citation #13?
Response:
The Bellamy study concerning sand sizes was incorrectly quoted in citation #13. The
corrected text should read, "Significant increases in total coliform removals were shown
at effective sand sizes less than 0.35 mm (Bellamy et al., 1985)."
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H43
Date Issued: December 1991
SUBJECT: Faucets Interpreted as "Lead Pipe Fittings"
SOURCE: Jeff Cohen
Peter Lassovszky
On June 7,1991, EPA finalized the Lead and Copper Rule that establishes revised National
Primary Drinking Water Regulations (NPDWRs) for lead and copper (56 F_R 26460). Section
141.85 (a)(3)(ii), the public education and supplemental monitoring requirements, states that
"Congress banned the use of lead solder containing greater than 0.2% lead, and restricted the lead
contents of faucets, pipes, and other plumbing materials to 8.0%." In reviewing the provisions of
the Lead Ban, it is not apparent that the term "faucet" is specifically included. Section
1417(d)(2) of the Safe Drinking Water Act states that the term lead-free -- "when used with
respect to pipes and pipe fittings refers to pipes and pipe fittings containing not more than 8.0
percent lead."
The Safe Drinking Water Hotline's Compendium of Responses to Policy Inquiries resolves
several issues dealing with the Lead Ban and faucets. One of the issues (Issue VIII-5) responds
to a lead sample size question by indicating site sources to include "faucets, fittings, pipes, and
solder" for lead sampling. Another issue (Issue VIII-4) addresses interpretation of pipe fittings
which states that "it is reasonable to suggest that various other elements common to water
distribution systems-such as joints, valves, meters, and fire hydrants-must be lead-free as well."
Is it EPA's interpretation that the term "faucets" was intended to be covered by the term "pipe
fitting"?
Response:
Yes, in implementing, the provisions of the Lead Ban, EPA has included the term
"faucets" as a "pipe fitting", under the restrictions of the Lead Ban. EPA believes that the
term "pipe fitting" purposely was used to include a wide range of plumbing products to
protect the public against the use of lead in drinking water.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H44
Date Issued: December 1991
SUBJECT: Lead Action Level Versus LCCA Guidance Level
SOURCE: Jeff Cohen
The final Lead and Copper Rule published in the Federal Register on June 7,1991 (56 FR
26460) establishes a lead action level of 0.015 mg/1 that triggers treatment technique
requirements in public water systems. In 1989, EPA issued guidance in the Lead Contamination
Control Act (LCCA) of 1988 (PL 100-572) recommending that schools on public water systems
take remedial action on an individual outlet whenever the lead levels exceed 0.020 mg/1 at that
outlet •
Will EPA change the recommended guidance level for schools on public water supplies to 0.015
mg/1 to be consistent with the new regulations? Additionally, what is the action level for schools
classified as public water system?
Response:
According to the preamble of the Lead and Copper Rule (page 26479), EPA is still
recommending that 0.020 mg/1 be used to trigger action at individual outlets in schools
using water from a public water system. Schools that are classified as public water
systems will have to follow the treatment and public education requirements of the Lead
and Copper Rule if they fail to meet the action level of 0.015 mg/1 in 90% of sampled
taps.
The difference between these two action levels springs from the size of the sample taken.
The EPA's "Lead in School Drinking Water" manual recommends schools collect 250 ml
first-draw samples from water fountains and outlets. This sampling was designed to
pinpoint specific fountains and outlets that required remediation. In contrast, the Lead
and Copper Rule requires systems to take a one liter first-draw sample to determine
system-wide problems.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H45
Date Issued: July 1992
SUBJECT: Adverse Health Effects of Lead and Copper from Avenues Other
Than Ingestion
SOURCE: Jeff Cohen
EPA promulgated standards for lead and copper in drinking water on June 7,1991 (56 FR
26460). The studies that were performed to set the standards examined lead contamination from
ingestion only. However, consumers come in contact with lead contaminated water through
many other avenues besides drinking. For example, bathing in water that is contaminated with
lead potentially could allow lead to be absorbed through the skin or droplets of water could be
inhaled while showering.
In the document Risk Assessment. Management and Communication of Drinking Water
Contamination (EPA/625/4-89/0254), EPA does not mention absorption or inhalation as an
avenue for contamination from inorganic contaminants. On page 48 the report states that, "The
skin is a relatively impermeable to toxicants: this barrier is over 100 cells thick. However, some
toxicants, such as carbon tetrachloride, can be absorbed through the skin in sufficient quantities
to cause liver injury. Absorption through the skin is possible through the hair follicles, through
the cells of the sweat glands and sebaceous glands, and through cuts or abrasions..." Therefore,
hi a few rare instances, EPA has considered avenues of contamination other than ingestion, but
these contaminants are organics like carbon tetrachloride rather than inorganics like lead.
Does EPA consider contact with lead contaminated water through inhalation or absorption
through the skin to be a health concern?
Response:
EPA does not consider exposure to lead contaminated water from absorption through the
skin or inhalation to be a health threat. Water contains inorganic forms of lead, which are
not capable of being absorbed through the skin. Lead in water is unlikely to pose a risk
via inhalation, unless contaminated water is used. Studies have shown no significant
evidence that these means of exposure to lead contaminated water will result in increased
levels of lead in blood, and therefore, no adverse health effects are anticipated.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH46
Date Issued: July 1992
SUBJECT: Geographic Distribution of Sample Sites for Lead and Copper
SOURCE: Jeff Cohen
The Final Lead and Copper Rule (56 F_R 26460) does not clearly define the geographic
distribution required for tier one sampling sites. The only language addressing the distribution of
sample sites is found in the preamble of the Lead and Copper Rule oh page 26518, which refers
to tier two monitoring sites after systems have exhausted their tier one sites. The preamble
indicates that the tier two sampling sites should be "... as equally distributed as possible..." when
all the tier one sites have been used. However, the Rule does not explain what geographic
distribution of sampling sites is required for the tier one samples.
Would a public water supply system better meet the requirements of the Final Lead and Copper
Rule if the tier one samples sites were close together, or if they were spread out over the area
served by the water system?
Response:
No specific geographic distribution requirement for tier one sampling sites is'placed on
the regulated community. The intention of the Lead and Copper Rule is to obtain
samples over the widest and most representative geographic distribution possible while
maintaining compliance with the rule.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H47
Date Issued: July 1992
SUBJECT: Incremental Service Connections
SOURCE: Ray Enyeart, OGWDW
(202)260-5551
Title 40 CFR § 141.2 defines a public water system as "...a system for the provision to the public
of piped water for human consumption, if such a 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." However, there is no specific language concerning public water systems that discusses
incremental service connections.
If a housing development is currently served by a facility that has five service connections in use
and contains an additional 10 unused service connections, is the facility considered a public
water system according to the definition in 40 CFR § 141.2?
Response:
Title 40 CFR Part 141 does not address the treatment of unused service connections.
EPA's policy has been that a system which serves at least 25 people or has at least 15
service connections, regardless of whether those connections are in use, meets the Federal
definition of a public water system (States may, and some do, regulate systems with
fewer service connections). However, EPA policy has also been that systems which do
not have at least 15 service connections in use, and do not serve at least 25 people, are not
considered to be "active" public water systems under the Federal definition and,
therefore, are not required to meet the Federal requirements of 40 CFR § 141.
The concept of "inactivity" was intended for systems which would dip below the 15
connection threshold for a substantial period of time; i.e., a year or more. EPA
recognizes that there are some systems, such as mobile home parks or small housing
developments, which have more than 15 connections but whose used (or active)
connections could frequently fluctuate above and below 15. Such systems would create
havoc with State and Federal regulatory tracking and oversight if those systems were
considered to be alternatively subject and not subject to the regulations every few months.
As such, for Federal oversight purposes, EPA considers such systems to be active and,
therefore, subject to the Federal requirements, even during those times when the system
did not have at least 15 connections in use. While EPA would recommend that States
adopt the same policy, it is within each State's discretion whether or not to recognize
frequent changes in a system's "active/inactive" status.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H48
Date Issued: July 1992
SUBJECT: Laboratory Certification for Water Quality Parameters
SOURCE: JeffKempic
On June 7,1991, EPA published the Final Lead and Copper Rule in the Federal Register, The
preamble for this Rule (page 26513) states that laboratories are not required to be certified to test
for water quality parameters; but the codified rule is not so clear. The list of analytical test
methods for lead, copper, and the water quality parameters is found in 40 CFR §141.89 (a). This
section [§141.89 (a)(l)] also states, "Analyses under this section shall only be conducted by
laboratories that have been certified by EPA or the State. To obtain certification for lead and
copper, laboratories must:...."
Because the water quality parameters are included in §141.89 (a) along with lead and copper, it
seems that laboratories must be certified to test for water quality parameters as well. Was it
EPA's intent to require laboratories to be certified to test for water quality parameters?
Response:
The preamble of the Lead and Copper Rule is correct; laboratories only have to be
certified for lead and copper testing, not for water quality parameters.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSG H49
Date Issued: July 1992
SUBJECT: Monitoring for Unregulated Contaminants
SOURCE: Jeff Sexton, OGWDW
(202) 260-7276
In the Phase II Rule that was promulgated on January 30,1991, (56 ER 3526) Section 141.40
requires all Community Water Systems (CWS) and Non-Transient Non-Community Water
Systems (NTNCWS) to monitor for 24 unregulated contaminants. The codified language does
not dictate the exact reporting requirements for analytical results that are below the Method
Detection Limits (MDLs). In a separate rule making, the Lead and Copper Rule promulgated on
June 7,1991 (56 FR 26460), EPA mandated in Section 141.89 that contaminant levels below the
MDL be reported as zero.
By analogy to the Lead and Copper Rule, should zero be reported to the state when a value less
than the MDL is obtained for a Phase II unregulated contaminant?
Response:
No. The requirement for reporting of contaminant levels below the MDL as zero applies
to the calculation of a running annual average of quarterly analytical results for the
determination of compliance with an MCL. An example would be the determination of
compliance with the VOC MCLs (a guidance document on reporting violations of the
VOC [Phase I] requirements to FRDS was prepared by the Drinking Water Branch in
1990.) The only violation that can be incurred relative to the unregulated contaminants,
however, is a monitoring violation.
In the Phase I VOC Rule (52 ER 25715), Section 141.35 states that the State "shall
furnish to the Administrator for each sample analyzed under Section 141.40: (1) Results
of all analytical methods, including negatives;..." The analytical results for the
unregulated contaminants that are below the Method Detection Limit (MDL) should be
reported as less than die specified MDL.
For example, if an unregulated contaminant could not be quantified at, or above, the
MDL of say 0.5 ng/1, it should be reported as "< 0.5 ug/1" and not as zero or "ND" (not
detected).
In this way, the users of the data have a better "handle" on the actual value. Less-than
values also give one an indication of the quality of the laboratory data; i.e., how low their
MDLs are. If statistical calculations then need to be made, the less than value can be
assigned a value such as zero or one-half of the MDL. OGWDW is developing reporting
guidance for Phase II unregulated contaminants and expects it to be available late spring
1992.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH50
Date Issued: July 1992
SUBJECT: Recordkeeping Requirements for Radionuclides
SOURCE: Greg Helms, OGWDW
Title 40 CFR 141.33 establishes recordkeeping requirements for public water systems concerning
bacteriological and chemical analyses. Section 141.33 (a) specifies that bacteriological records
must be kept at least five years and chemical analyses at least 10 years. However, there is no
specific language addressing the length of time radiological records must be maintained.
Furthermore, the proposed Radionuclides Rule of July 18,1991 (56 ER33050) does not contain
any language that would modify 40 CFR 141.33 - Record maintenance.
Has EPA specified recordkeeping requirements for radionuclide analyses?
Response:
In terms of the recordkeeping requirements promulgated in 40 CFR 141.33, EPA
considers radionuclides to be chemical contaminants. Therefore, public water systems
must keep records of radionuclide analyses at least 10 years.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH51
Date Issued: July 1992
SUBJECT: Sodium Requirements for Public Water Supplies
SOURCE: Ken Bailey, OST
(202)260-5535
On August 27,1980, EPA published final regulations in the Federal Register for monitoring for
sodium in public water supplies. These regulations required public water suppliers to monitor
for sodium and to report the results to the State, but no standard or guidance level was
established for this contaminant. However, in the preamble of this rule, EPA suggests that
"sodium levels of 20 mg/1 or less in drinking water be considered optimal (for people on sodium-
restricted diets)." According to Dr. Ken Bailey, contact for human risk assessment of sodium in
drinking water, Health Effects Assessment Section of the Office of Science and Technology,
there is currently no EPA standard or health advisory level for sodium in drinking water.
Has EPA established a safe level of sodium hi drinking water?
Response:
On January 18,1988, EPA published a notice of substituted contaminants and the first
Drinking Water Priority List in the Federal Register (53 F_R 1892). In this notice, EPA
removed sodium from the List of 83 Contaminants to be regulated. The notice states
(page 1894), "To assist those who, for medical reasons, require a restricted sodium diet
(i.e., 500 mg/day), EPA recommends a sodium limit in drinking water of 20 mg/1." The
level of 20 mg/1 in drinking water is based on the current American Heart Association's
recommendation for people who are on a severely restricted sodium diet.
Ion exchange softening, either with home units or at the treatment plant, can result in
elevated levels of sodium in drinking water.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH52
Date Issued: July 1992
SUBJECT: Variances and Exemptions for Fluoride Revised in the
Phase II Rule
SOURCE: Al Havinga, OGWDW
On April 2,1986 EPA promulgated a National Revised Primary Drinking Water Regulation for
fluoride of 4.0 mg/1 (40 CFR § 141.62 (b)), and issued procedures by which public water systems
may obtain variances from the interim and revised fluoride standard. Under the variance
procedure cited from 40 CFR § 142.61 (b), it states that the Administrator or primacy State "shall
require a public water system to install and/or use any treatment method identified in § 142.61
(a) (activated alumina absorption, centrally applied or reverse osmosis, centrally applied), unless
none of the technologies are available or effective as a condition for granting a variance." If the
system can not install technology identified in § 142.61 (a) because the technology is not
effective or is unavailable, the Administrator or primacy State may issue a variance. This
variance allows a public water system to examine other methods of treatment to reduce the level
of fluoride in drinking water.
On January 30,1991 (56 FR 3526) EPA promulgated or re-proposed National Primary Drinking
Water Regulations (Phase II Rule) for 38 contaminants. New or revised maximum contaminant
levels (MCLs) for eight inorganic compounds now appear in § 141.62 with the existing MCL for
fluoride. Additionally, in § 142.62 there are revisions to the variances and exemptions which
were established for the MCLs for organic chemicals as well as for eight new or revised
inorganic chemicals. Section 142.62 (f) contains provisions which may require a public water
system to use bottled water, point of use devices, point of entry devices, or other means as a
condition for granting a variance or an exemption from the requirements of § 141.61 (a) and (c)
[the MCLs for organic contaminants] and § 141.62 [the MCLs for inorganic contaminants,
including fluoride]. Additional provisions and conditions for the use of bottled water as a
condition for receiving a variance or an exemption from the MCLs for organic contaminants and
inorganic contaminants, including fluoride appear in § 142.62 (g). The use of bottled water,
point of use devices, and point of entry devices was not a provision previously allowed when
granting a variance for fluoride.
Was it EPA's intent to include fluoride in the revised provisions which allow the use of bottled
water, point of use devices, and point of entry devices as a condition of granting variances and
exemptions for the new and revised inorganic MCLs?
Response:
Yes, it was EPA's intention to amend the existing provisions for granting a variance from
the MCL for fluoride to include the use of bottled water, point of use devices, and point
of entry devices in §142.62. When making a reference to the new and revised inorganic
MCLs in §141.62, §142.62 (f) and (g) include fluoride.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH53
Date Issued: December 1999
SUBJECT: Point-of-Entry (POE) Devices to Comply with the Total Coliform Rule, Surface
Water Treatment Rule (S WTR) and Interim Enhanced Surface Water Treatment
Rule(ffiSWTR) b
SOURCE: CliveDavies,OGWDW N
(202) 260-1421
The Total Coliform Rule, SWTR, and IESWTR apply to public water systems; i.e.,
systems serving at least 15 service connections or 25 people per day. Individual households may
use POE devices at their own discretion and have no requirements to meet the Safe Drinking
Water Act. Though generally not recommended, POE devices may in some circumstances be
used in lieu of centralized treatment to comply with the Total Coliform Rule, SWTR, or
IESWTR, or as a condition for obtaining an exemption. Exemptions are time delays for meeting
the criteria of a National Primary Drinking Water Regulation (NPDWR). Exemptions may be
granted by the State depending upon the circumstances of a system. Exemptions for systems
with 500 or fewer service connections can be renewed indefinitely if applicable criteria are met.
Section 141.100, Subpart J of the NPDWR (enclosed) specifies conditions which must be
met for POE devices to be used to comply with a Maximum Contaminant Level (MCL) such as
the Total Colifonn Rule. Though not stated in Section 141.100, these conditions are also
appropriate for determining if POE devices may be used for complying with a treatment
technique requirement such as the SWTR and IESWTR. hi addition, the SWTR and IESWTR
require that alternative filtration technologies such as POE devices, in accordance with Section
1412 (b)(4)(E), must be "owned, controlled, and maintained" by the PWS and cannot use POU
devices for microbial control. These devices must also be demonstrated to the satisfaction of the
State that, in combination with disinfection, they are capable of achieving at least 99,9 and 99.99
percent removal and/or inactivation ofGiardia cysts and viruses, respectively. Also, for systems
serving more than 10,000 people, the IESWTR requires that POE devices achieve 99.0 percent
removal of Crvptosporidium cysts. The characteristics of the POE device and the maintenance
program will determine the amount of monitoring which is appropriate to ensure that adequate
treatment is being provided on an ongoing basis.
The SWTR and IESWTR allow for continuous turbidity monitoring with periodic
validation in lieu of grab sample monitoring. If continuous monitoring is used, measurements
are to be read from a recorder at four-hour intervals to determine compliance. For alternative
filtratidn technologies (which would include POE devices), the SWTR allows the State to reduce
turbidity monitoring to one representative sample of the filtered water per day, depending upon
the characteristics of the technology. If the performance of one POE device cannot be relied on
to reflect the performance of the other POE devices, at least one sample per day from each device
should be required. In some cases it may be possible, depending upon the design of the POE
device and the maintenance program in place, that representative monitoring can be achieved
with one sample from a different POE device each day.
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Regarding disinfection with ultraviolet light, the SWTR and ffiSWTR do not allow for
this technology to be used alone for providing disinfection. Ultraviolet light is not known to be
effective for inactivating Giardia cysts and it does not provide a disinfectant residual. However,
ultraviolet light is effective for inactivating viruses in non-turbid waters. It appears that a POE
device which removes at least 99.9 percent of Giardia cysts followed by disinfection with
ultraviolet light, which achieves with filtration at least 99.99 percent removal and inactivation of
viruses, could be an effective means of providing adequate treatment for individual households.
EPA is considering use of ultraviolet light in the forthcoming disinfection requirements for
ground water systems that EPA plans to propose in early 2000. Additionally, recent data indicate
that ultraviolet light may be effective against Crvptosporidium.
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