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 o |