STATE/FEDERAL RELATIONSHIP OPTIONS PAPER
      EPA GROUND-WATER TASK FORCE
                        January 25, 1990

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STATE/FEDERAL RELA11ONSHIP ISSUES
IN GROUND-WATER PROTECrION
BACKGROUND AND PURPOSE :
Since the adoption of the Agency’s 1984 Ground-Water Protection Strategy, EPA
has been providing technical and financial assistance under the Clean Water Act to
build State capacity to protect ground water in a comprehensive manner. Further,
EPA has been implementing several source-specific statutes that protect and cleanup
ground water. Most States are now actively involved in managing the quality of their
ground-water resources, yet the degree of comprehensiveness and effectiveness of State
programs vary across the country.
Over the last few years, States have made significant progress and worked
aggressively to protect ground water, yet both the States and EPA recognize that there
is much that remains to be done to ensure comprehensive protection of the resource.
State ground-water protection programs are often a patchwork of Federal and State
source controls.
Our underlying assumption in developing this discussion paper is that it is time -
for EPA to take a more strategic approach and to more actively assist the States in
comprehensively protecting the ground-water resource from fl sources of
contamination. We do not intend to change our regulatory role for specific sources of
contamination under current federal statutes, but rather step up our efforts to help
build on the State level a comprehensive framework for coordinating Federal
programs, and addressing, at the appropriate level, currently unregulated sources of
contamination.
The purpose of this paper is to present the framework for how EPA will
strengthen and restructure the State/Federal relationship in ground-water protection
over the next few years without unnecessary duplication or losing the momentum or
progress gained in State programs. ft lays out concepts and policies which the Agency
has generally adopted in defining the complementary State/Federal relationship, as
well as the options EPA is considering for several unresolved policy issues involved in
implementing ow programs.
PRINCIPLES DEFINING THE STATE/FEDERAL RELA11ONSHIP :
In drafting this paper, the Agency used EPA’s Statement of Goals and Principles
and began to define the State/Federal relationship in ground-water protection. (See
associated “Principles” document)
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Several key concepts are reflected in the principles which the Mencv has adopted to
guide its fround-water Drotection efforts, including the followi g:
State Role is Critical : States should have the primary responsibility for
the management and protection of the ground-water resource. In
augmenting the States’ efforts, EPA will continue, at the very least, to
administer Federally-mandated programs such as RCRA and CERCLA, and
will enhance and support State efforts through technical and financial
means.
• Resource.Based Efforts : States and EPA should emphasize a resource-
based approach to protection, in addition to the current source control
programs. Under this approach, the total impact of all sources of
contamination as well as the unique hydrogeologic features of the
resource should be taken into account in developing protection programs.
• Emphasis on Prevention : In general, the State/Federal relationship
should be structured so that ground-water contamination prevention
efforts are enhanced and coordinated.
• The Roles of Federal and State Government in Regulating Specific
Sources of Contamination Should be Based on the Following Factors : -
1. The Federal Government should take a prominent regulatory role:
a) when there is a need to establish regulatory consistency (i.e., in
order to ensure minimum protection, to prevent the development
of “pollution havens,” or to limit adverse impacts on interstate
commerce); b) when the scope of the effort requires national
resources (e.g., research, regulations addressing complex
environmental problems); c) when State-by-State efforts would
create unwarranted and inefficient duplication (e.g., bans,
research); and d) when national security is involved (e.g., the
disposal of radioactive waste).
2. States should play the prominent regulatory role when the
activities of concern are numerous (e.g. 23 million septic tanks)
or highly localized and present a low to medium potential for
ground-water contamination; when land use management is a
principal protection approach; and when technologies currently
exist or are easily developed to address the problem. Further,
State and local governments should play the primary role in the
implementation of ground-water protection regulations.
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There are, however, two concepts which the Agency believes require further
discussion and resolution -- the role of differential protection and the role of quality
standards in implementing ground-water protection efforts. The concepts, and the
optional approaches that the Agency is considering, are described below.
Differential Protection : The idea of protecting ground water to variable
degrees depending on the characteristics of the resource (i.e., differential
protection) is accepted in the Agency and has been implemented in some
EPA programs. However, there is considerable discussion about what the
concept of differential protection means and how it is to be applied in
EPA programs. It is generally viewed as taking the use, value, and
vulnerability of the resource into account as decisions on ground water
are made.
Implementation of a differential protection approach is interpreted as
varying the degrees of protection based on the characteristics (use, value
and vulnerability) of the resource -. e.g., providing a greater margin of
safety through tighter controls in particularly valuable and vulnerable
areas, such as areas where failure of a control system could result in
direct contamination of a drinking water well.
Concerns have been raised about the method for implementation (e.g.,
classification, case-by-case risk assessments); how consistently such
decisions should be made across the Agency; who should make such
determinations; and whether the resulting levels of cleanup or protection
should ever fall below a given level for any category of ground water.
These issues are covered further in the section “Relating Federal
Activities to State Ground-Water Protection Programs and Standards”
below.
• quality Standards : It is the Agency’s policy that MCL5 (or health
advisories when no MCL exists), under the Safe Drinking Water Act, are
“reference points” for ground-water protection activities under Federal
statutes when decisions involve current or potential sources of drinking
water. Water quality criteria under the Clean Water Act are the
“reference points” for ground waters that support sensitive ecological
(surface water) systems. The reference point is to be applied differently
for prevention and cleanup purposes.
This paper uses MCLS as the reference point because they are set to be
protective of the drinking water use through an extensive regulatory
process. Where MCLS are not available, EPA Health Advisory numbers
for long-term drinking water exposure would be recommended. In some
cases, MCLGs may be used where applicable to meet specific Federal
statutory requirements.
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The Agency, however, is currently discussing how deviations from the
reference point will be arrived at -- the options being considered include
the following:
OPTIONS:
Prevention Opnons
(1) Use MCLS as “reference points” to gauge the severity of contamination and to
determine appropriate regulatory steps — reaching the MCL would be ëonsidered a
failure of prevention. Best technologies and management practices are relied on to
protect ground water to the maximum extent practicable; detection of a percentage
of the MCL would be used to trigger additional action (e.g., restricting, limiting use
or banning the use of a pesticide) to avoid reaching the MCL.
(2) Establish the MCL as the minimum standard, or floor, for prevention activities -. i.e.,
target prevention activities to allow contamination up to the MCL but not at levels
that would exceed it (this approach has been interpreted as “allowing
contamination” up to an MCL).
Cleanup Options
(1) Establish the MCL as the maximum cleanup level in remediation programs and
allow less stringent levels depending on such factors as likelihood of potential use,
cost, technological practicality, negative environmental factors (e.g., dewatering of
aquifers).
(2) Apply the MCL as a reference point using criteria established under each related
statute to determine the actual cleanup level, e.g., in a CERCLA cleanup involving a
chemical mixture, if the additive risk from using the MCL for each chemical would
result in an overall cleanup risk outside the risk range deemed to meet the
protectiveness standard under the CERCLA statute (i.e., 10.’ to 10.6), then cleanup
levels for the chemicals will be adjusted until the protective risk can be achieved.
DEVELOPING STATE GROUND-WATER PROTECI1ON PROGRAMS:
Moving from “Supporting” to “Ensuring” the Development of Comprehensive
State Protection Programs . Since 1984, EPA has been providing technical and
financial support to States in the voluntary development of State ground-water
protection strategies. The Agency is concerned, however, that under this approach
significant risks to human health and the environment posed by unaddressed sources
of contamination will remain. To adequately address the risks posed to human health
and the environment from all sources of ground-water contamination, the Agency will
enhance efforts to ensure a truly complementary State/Federal strategy, based upon
effective and appropriate State action. A core premise in this approach is recognition
of the primary Stare role in protecting the resource, and the State need to design and
implement programs consistent with distinctive local needs and conditions.
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EPA intends to move from supDorting the development of State ground-water
protection strategies, to ensuring the development and implementation of
comprehensive State protection programs. This generally means that EPA could
engage in such activities as establishing broad program criteria; approving or
disapproving programs; providing financial incentives for acceptable programs and
levying sanctions for unacceptable programs; and providing process, performance,
and/or technological standards or guidance. A corollary to ensuring State programs
would be Federal willingness to defer to duly adopted State program elements.
The Agency is currently considering two optional approaches to ensuring that
States develop comprehensive protection programs. In addition, the issue of whether
the Agency should seek legislation to provide additional authority in this area is being
discussed as well. The two general approaches under consideration are the following:
OPTIONS:
(1) Moderate EPA Oversight EPA will develop flexible program approval/disapproval
criteria that are generally performance oriented. Financial and other incentives for
program approval will be used — this would include providing States greater
flexibility in operating EPA programs by applying State standards and use
designations in decision-making. Sanctions for disapproval will be limited.
Examples of this type of program include the Welihead Protection and Underground
Storage Tank Programs.
(2) Substanthl EPA Oversight EPA will develop mandatoiy program elements and will
define approval/disapproval criteria for both performance and process in some -
detail. Financial and other incentives would apply as in option (1) above.
Sanctions for disapproval might include withholding of related grant funds and/or
EPA assumption of inadequate State programs. EPA might retain a residual
authority to enforce requirements where the state fails to do so. Examples of this
type of program include the RCRA hazardous waste and NPDES programs.
Elements of a State Comprehensive Protection Program . As part of the process
of ensuring development of comprehensive State protection programs, the Agency will
define the elements of a State program. The Agency’s role in how each of the
elements will play out in State ground-water protection programs will depend on the
type of EPA oversight that is provided (discussed in the above options). The elements
of comprehensive protection programs that EPA is considering include the following:
Setting Goals and Documenting Progress:
- Ground-water protection goal which accounts for present and future uses
of the resource;
- Yearly action plan for achieving the goal;
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Mechanism for evaluating progress toward accomplishing the goal, and
providing for EPA review;
CharacterizinE the Resource and Prioritizing Actions:
• Comprehensive mapping of aquifer systems and their associated recharge
and discharge areas;
• Procedure for inventorying all potential sources of contamination that
may cause an adverse effect on human health; or ecological systems;
- Process used for prioritizing actions taken to protect or remediate the
resource such as a use designation/classification scheme that considers
use, value, vulnerability, yield, current quality, etc.; including welihead
protection and cost benefit analyses;
Developing and Implementing Control Programs:
- Enforceable quality standards that are health based for drinking water
supplies and water quality based in areas where ground water affects
sensitive surface water ecosystems;
- Regulatory and nonregulatory authorities to control all sources of
contamination currently under State jurisdiction; e.g. permitting, siting
and zoning authorities on the State and local level;
- Remediation program which dovetails with RCRA and Superfund and
prioritizes actions according to risk;
- Monitoring, data collection, and data analysis activities to determine the
extent of contamination, update control strategies and assess any needed
changes in order to meet the ground-water protection goal;
- Compliance and enforcement authorities given to the appropriate State
and local officials through legislative or administrative processes;
- Water well program, including private drinking water wells, covering
areas such as well testing, driller certification, well construction, and
plugging abandoned wells;
- Statement of how Federal, State and local resources will be used to
adequately fund the program;
- Public participation activities to involve the public in the development
and implementation of the program.
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Defining Roles Within the State and the Relationship to Federal Programs:
- Delineation of State agencies’ responsibilities in the ground-water
program covering areas such as planning, implementation, enforcement
and coordination;
- Statement indicating how the State will or does provide local
governments with authorities to address local ground-water protection
issues;
- Statement of the State’s role under ground-water related Federal statutes
including RCRA, CERCLA, SDWA, CWA, and FIFRA; e.g., EPA-approved
programs such as a RCRA authorization should be listed and integrated
as part of the State’s overall ground-water protection strategy yet
continue operating as free-standing programs;
- Mechanisms for dealing with other Federal agencies that affect State
ground-water programs (e.g., USDA, DO!, DOD),including MOUs and
other formal agreements;
- Statement indicating how the State intends to integrate water quantity
and quality management;
- Coordination of ground-water programs with other relevant natural
resource protection program including surface water management;
RELATING FEDERAL ACTIVITIES TO STATE GROUND-WATER
PROTECTION PROGRAMS AND STANDARDS:
State Use Designations (Classification of Ground Waters) in Federal Programs :
Recognizing the local nature of many ground-water protection decisions in EPA
programs, the Agency is considering the option of allowing greater flexibility to those
States with comprehensive protection programs in place by deferring to State use
designations in deciding the level of activity to undertake in Agency programs. Under
this concept the Agency would accept a State use designation/classification system that
would result in a less protective action than would normally be required under Federal
programs -- e.g., a more limited RCRA corrective action. This is often an issue for
protection and cleanup activities in ground waters that are of marginal quality or
which the State feels are not likely to be needed for water supply in the foreseeable
future.
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The options EPA is considering for addressing this issue include the following:
OPTIONS:
(1) Defer to States: EPA should defer to State use designations and recognize
corresponding program requirements in setting the level of activity under Federal
programs. Such deferral might be deemed appropriate in:
a) Any State with a classification or other use designation system regardless of
how it was established or whether EPA would agree with the.process and
results;
b) Only those States that established their use designations through a legal
process which included public hearings;
c) Only those States with ground-water programs containing minimum Federal
elements and that have been approved by the Federal Government;
d) Only those States that adopt a minimum acceptable use designation as
defined by EPA and allow use designations less smngent than that minimum
level only as exceptions; or
e) Only those States with use designations at least as srnngent as those defined
by EPA in current programs and policies.
(2) No Deferral to States: EPA should not defer to State use designations.
Some of the issues which should be considered in discussing these options
include:
• CERCLA Considerations : Given that Federal funding for cleanup
activities is limited, should EPA apply more stringent State standards
when they would require a significant increase in Federal resources at a
particular site?
• Legality : Are there legaVpolitical risks in using State standards as a
basis for Federal action?
• Interstate Consistency : Will the use of State use designations lead to
unacceptable inconsistencies among State ground-water protection
efforts?
State Use Desig nations in State Programs : Unless EPA chooses option #1C
above, for the purpose of State initiated programs established by State statutes, the
Agency believes the State’s own use designations (classifications) and quality standards
should be used on regulating State activities.
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State Choices Concerning the Use of the MCL : While EPA may consider
deferring to State ground-water use designations when determining appropriate
activities under Federal programs, EPA will not defer to States in setting risk levels for
ground waters used as drinking water sources. This means, for example, in Federal
prevention activities, the MCL will act as a floor with EPA generally accepting more
stringent State standards; and in EPA cleanup actions, ground water used for drinking
water will be cleaned to MCL levels or analogous EPA-established risk levels. For
State initiated programs State standards will apply.
DISBURSEMENT OF FEDERAL FUNDS :
Grants and other financial support for ground-water activities in the States
come from several sources. EPA is considering whether integrating disbursement
processes would be useful in strengthening the States’ ability to manage and protect
their ground water. Several alternatives that are being considered include:
OPTIONS:
(1) Increase coordination among EPA program offices and the Regions during the
annual budget deliberations to eliminate unnecessary duplication in grant purposes.
(2) Create a single ground-water grant to the States to be used by the States as they see
fit in implementing the full range of their ground-water programs.
(3) Set aside a portion of Superfund to be used as incentive grants to encourage States
to develop prevention-based ground.water programs.
(4) Take some ercentage from all EPA grant programs impacting on ground water and
develop a new grant pool to be used to foster greater integration of ground-water
programs at the State level.
(5) Make disbursement of Federal funds to a State for ground-water protection efforts
contingent upon a State having completed a ground-water protection program that
describes a plan and time table to integrate Federally-supported and State efforts
and assure comprehensive protection.
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