United States Environmental Protection Office of Water EPA 812/B-93-004 Agency (WH-550) March 1993 &EPA INDIAN PRIMACY PROCEDURES HANDBOOK FOR THE PUBLIC WATER SYSTEM SUPERVISION (PWSS) PROGRAM AND THE UNDERGROUND INJECTION CONTROL (UIC) PROGRAM ------- INDIAN PRIMACY PROCEDURES HANDBOOK FOR THE PUBLIC WATER SYSTEM SUPERVISION (PWSS) PROGRAM AND THE UNDERGROUND INJECTION CONTROL (UIC) PROGRAM 1990 Office of Drinking Water US Environmental Protection Agency Washington, DC ------- DISCLAIMER STATENEENT ENVIRONMENTAL PROTECTION AGENCY REVIEW NOTICE This Indian primacy procedures handbook has been reviewed by the Office of Drinking Water, US Environmental Protection Agency. This review does not signify that the contents necessarily reflect the views and policies of the Environmental Protection Agency or the employers of the other project reviewers and consultants. NOTICES Development Grant Applications or requested funding levels for PWSS and/or UIC primacy programs are contingent upon funds available to EPA. Tribes offered Development Grant and Primacy Program funding may be required to provide more than 25 percent of the development and program costs. 2. Work with your EPA Regional staff members when preparing applications for 1. Treatment as a State, 2. Development Grant, and 3. Primacy Program Grant. Appendix 2 contains a listing with the name, address and phone number of the EPA contact person in each EPA Region. ii ’ ------- ACKNOWLEDGEMENTS The Project Directors wish to thank all the people who have worked with us and contributed to this project. PROJECT DIRECTORS EPA PROJECT MANAGER Roger Barnes (WH 550E) US EPA, Office of Drinking Water 401 M Street, SW Washington, DC 20460 Phone: (202) 475-8997 or (202) 245-4194 Kenneth D. Kern Office of Water Programs California State University, Sacramento - 6000 J Street Sacramento, CA 95819-6025 Phone: (926) 278-6142 Michael 3. Cherniak Environmental Training Consultants, Inc. P0 Box 2094 Corvallis, OR 97339 Phone: (503) 754-7677 PROJECT CONSIThLTANTS Allen Sloan Salish Kootenai Housing Authority P0 Box 38 Pablo, MT 59855 Phone: (406) 675-4491 Debi Madison Environmental Dept., Ft. Peck 605 Indian Avenue Box 1027 Poplar, MT 59255 Phone: (406) 768-5155, Ext. 399 Dr. Kate Vandemoer Joint Tribal Environmental Quality Commission - Wind River Shoshone and Arapahoe Tribes #10 Washakie Street, P0 Box 217 Fort Washakie, WY 82514 Phone: (307) 332-3164 Tom Crawford Training Environmental Consultants 921 Monument Peak Drive Gardnerville, NV 89410 Phone: (702) 265-2490 V ------- PROJECT EDITOR Peg Hannah P0 Box 119 Shingle Springs, CA 95682 Phone: (916) 677-8878 TRIBAL REVIEWERS Everett Iron Eyes Water Resources Dept., Box D Standing Rock Indian Reservation Fort Yates, ND 58538 Phone: (701) 854-7214 Hap Mayberry The Navajo Tribal Utility Auth. do NTUA Central Warehouse P0 Box 170 Fort Defiance, AZ 96504 Phone: (602) 729-5721 Peter Capossela Water Resources Dept., Box D Standing Rock Indian Reservation Fort Yates, ND 58538 Phone: (701) 854-7214 Christopher Eck Marceau, Karnopp, Petersen, Noteboom and Hubel 835 Northwest Bond Street Bend, OR 97701-2799 Phone: (503) 382-3011 EPA REVIEWERS - DRINKING WATER Jerry Healey US EPA, Region I Office of Water Supply (2103) JFK Federal Building Boston, MA 02203 Phone: (617) 565-3610 Walter Andrews, Chief US EPA, Region U Drinking/Groundwater Projection 26 Federal Plaza, Room 845 New York, NY 10278 Phone: (212) 264-1800 TajKhan US EPA, Region H Drinking/Groundwater Protection Branch 26 Federal Plaza, Room 845 New York, NY 10278 Phone: (212) 264-1358 David (Dave) Hutchins US EPA, Region IV Drinking Water Section 345 Courtland Street, NE Atlanta, GA 30365 Phone: (404) 347-2913 vi ------- EPA REVIEWERS DRINKING WATER (continued) Rich Freeman US EPA, Region V 230 South Dearborn (SW-TUB-8) Chicago, IL 60604 Phone: (312) 886-0134 Mac Weaver US EPA, Region VI Water Supply Branch (6W-S) 1445 Ross Avenue, Suite 1200 Dallas, TX 75202 Phone: (214) 655-6444 Jennifer Francis Pat Denham US EPA, Region Vifi Water Management/Drinking Water (8WM-DW) 999 18th Street, Suite 500 Denver, CO 80202-2405 Phone: (303) 293-1420 Bill Thurston Jill Korte Barry Pollock US EPA, Region IX Drinking Water Branch Water Supply Section (W-6-1) 1235 Mission Street San Francisco, CA 94103 Phone: (415) 744-1851 Len Pardee (6W-SP) US EPA, Region VI Water Supply Branch 1445 Ross Avenue Dallas, TX 75202-2733 Phone: (214) 655-7155 Talva Hayes US EPA, Region VII Water Management Division (DRNK) 726 Minnesota Avenue Kansas City, KS 66101 Phone: (913) 236-2815 Craig Paulsen Mail Stop WD-132 US EPA, Region X 1200 Sixth Avenue Seattl, WA 98101 Phone: (206) 442-4350 vii ------- EPA INDIAN COORDINATORS Anne Fenn Indian Coordinator EPA Region I (PAG 2300) JFK Federal Building Boston, MA 02203 Phone: (617) 565-3395 Robert Hargrove Indian Coordinator EPA Region II (2PM-E1) 26 Federal Plaza New York, NY 10278 Phone: (212) 264-1892 Arthur Linton Indian Coordinator EPA Region IV (EAB-4) 345 Courtland Street NE Atlanta, GA 30365 Phone: (404) 881-3776 Casey Ambutas Indian Coordinator EPA Region V (5ME14) 230 South Dearborn Street Chicago, IL 60604 Phone: (312) 353-1394 Ernest Woods Indian Coordinator EPA Region VI (6E-FF) 1445 Ross Avenue Dallas, TX 75202 Phone: (214) 655-2260 Michael Bronoski Indian Coordinator EPA Region VII 762 Minnesota Avenue Kansas City, KS 66101 Phone: (913) 551-7291 Sadie Hoskie Indian Coordinator EPA Region VIII (8OEA) 999 18th Street Denver, CO 80202 Phone: (303) 293-7596 Roccena Lawatch Indian Coordinator EPA Region IX (E-4) 1235 Mission Street San Francisco, CA 94103 Phone: (415) 531-4843 Vacant Indian Coordinator EPA Region X 1200 Sixth Avenue Seattle, WA 98101 Phone: (206) 442-8512 Martin D. Topper, PhD National Indian Program Coordinator USEPA-4OlMStreet,SW Washington, DC 20460 Phone: (202) 382-7063 FAX: (202) 252-0129 v i ii ------- I RS REVIEWERS J. R. Olguin, Engineer US Public Health Service Indian Health Service 505 Marquette, Suite 1407 Albuquerque, NM 87102 Phone: (505) 766-2139 Richard Barror, Ph.D. Indian Health Service Paridawn Bldg., Room 5A-55 5600 Fishers Lane Rockville, MD 20857 Phone: (301) 443-1046 Robert (Skip) Hayes, PE IHS-POBox 2143 Billings, MT 59102 Phone: (406) 657-6451 Wayne Craney 215 Dean A. McGee Street, NW Environmental Health, Room 409 OK City Area IHS Oklahoma City, OK 73102 Phone: (405) 231-5061 Donald I. Vesper, MPH, R.S. Department of Health Services USPHS Indian Health Service Environmental Management Branch 300 San Mateo, NE, Sñite 600 Albuquerque, NM 87108 Phone: (505) 262-6318 ix ------- TABLE OF CONTENTS Section Page 1 pRI f AC’ ” 1 1.1 WhatisPrimacy’ 1 1.2 What is the History of Indian Primacy’ 1 1.3 GoalsofThisHandbook 3 1.4 How is This Handbook Used’ 3 1.5 Definition of Terms 4 2 ADVANTAGES AND LIMiTATIONS OF PRIMACY 7 3 HOW MUCH MONEY IS AVAILABLE 15 4 WHAT ARE THE TRIBE’S RESPONSIBILITthS AF I’ER GAINING PRIMACY 16 5 TREATMENTASASTATE M 17 5.1 Whatis 17 5.2 What Will EPA Expect in an Application’ 18 5.3 What Items Should Be Submitted with Your Application? . 19 5.4 How Does the Application Review Process Work’ 29 5.5 SampleLetterofApplication .... 31 6 PR1MACYPROGRAM 33 6.1 WhentoSeekPrimacy’ 33 6.2 How Does a Tribe Demonstrate It Is Ready for Prin1acy 34 6.3 What Are the Details of the Public Water Supply Supervision (PWSS) Requirements’ 35 6.4 What Are the Primacy Requirements for Underground Injection Control (UIC) Program’ 40 6.5 What Do the Classes of Wells Mean? 43 xi ------- 7 DEVELOPMENT GRANT PROGRAM . 47 7.1 What Are the Acceptable Uses of Development Grant Funds” 7.2 How Does a Tribe Apply for a Development Grant” 48 7.3 What Information Should be Included in an Application for a Development Grant” 57 7.4 How Is the Level of Funding Determined and What Are the Matching Funds Requirements’ 60 7.5 How Will EPA Evaluate a Tribe’s Capability to Achieve Primacy” 62 8 CKECI(ISIS’.IS 63 8.1 Tribal Water Utility Agency . . . . 63 8.2 Tribal Enforcement Agency 66 8.3 “Treatment as a State” Application . 67 8.4 Development Grant Application . . 69 8.5 Primacy Application 75 9 RERENCES 79 10 APPENDICES 79 1. Robert I. Blanco Memorandum 81 2. EPA Regional Contacts 109 3. FACT SHEET: Drinking Water Regulations Under the SafeDrinking Water Act 111 4. UIC Attorney General’s Statement 159 5. Typical or Suggested Tribal Statements in Applications 171 x l ’ ------- NATIONAL INDIM PRIMACY PROCEDURES HANDBOOK FOR flJE PUBLIC WATER SYSTEM SUPERVISION (PWSS) PROGRk 1 AND ThE UNDERGROUND INJECTION CONTROL (UIC) PROGRAM 1.0 PRIMACY 1.1 What is Primacy ? Primacy is a provision in the 1986 Amendments to the Safe Drinking Water Act (SDWA). It allows Indian Tribes the opportunity to assume principal responsibility in the enforcement of public drinking water and/or underground injection control (UIC) regulations within the Indian Tribe’s jurisdiction. Currently this enforcement is performed by the Regional Office of the US Environmental Protection Agency (EPA). To attain primacy a Tribe must have drinking water and underground injection control regulations which are at least as strict as EPA regulations, and must have an independent agency or organization within the Tribal government that has the power to enforce its regulations. Primacy has serious economic, political, and functional implications for Tribes. Deciding to seek or not seek primacy requires that a Tribe review its environmental protection plans, evaluate its governmental/administrative organization and consider its sources of revenue. The formation and administration of an independent Tribal enforcement agency to enforce Tribal drinking water codes and regulations can be very costly. EPA funds are available but they are very limited and are not sufficient to cover all program costs. Primacy will allow a Tribe to more fully exercise its sovereign Tribal powers by assuming the federal (EPA) program of establishing and enforcing drinking water and/or underground injection control rules and regulations for water utilities. This can afford a Tribe an increased role in the regulation of the reservation environment. Primacy also offers a Tribe the opportunity to express its sovereignty in the federal area. 1.2 What is the History of Indian Primacy ? In 1974 the United States Congress passed legislation designed to maintain and improve the quality of the nation’s drinking waters. This legislation, the Safe Drinking Water Act (SDWA) of 1974, was later amended several times. In 1986, Amendments to the Safe Drinking Water Act added provisions that would allow 1 ------- Indian Tribes to assume prinicpal responsibility for enforcing public drinking water regulations in areas within the Indian Tribe’s jurisdiction. Federal water regulations require the Environmental Protection Agency (EPA) to decide what substances may be harmful to the public when found in their drinking water. EPA was also given authority to decide at what levels these substances could safely be permitted, what methods could most effectively remove these substances, and what kinds of laboratory testing must be used to measure these substances. However authority alone, without enforcement power, can’t accomplish much. So the US Congress also gave EPA broad legal authority to enforce the drinking water regulations. In addition, EPA was directed to protect underground sources of drinking water (USDW) through the development and enforcement of regulations designed to control the injection of fluids into or near USDW. With the approval of Congress, the EPA has decided that the most effective way to administer the public water system and underground injection control regulatory program was to assign some of the regulation, implementation and enforcement functions. EPA still defines what substances may be harmful to the public and what levels are safe in drinking water. But the EPA assigns enforcement power to individual states and Tribes who qualify for this responsibility. The EPA then oversees the enforcement programs run by the states and Tribes. Because of their unique status as autonomous domestic nations, Indian Tribes were not considered ustateSu when the Safe Drinking Water Act was initially passed in 1974. Tribes have continued to be regulated directly by the EPA with regard to drinking water supplies and the protection of groundwater. Tribes were not eligible to assume the enforcement functions which EPA assigns to N StateS.” The June 19, 1986, Amendments to the Safe Drinking Water Act changed that situation. Section 1451 (“]:ndian Tribes”) authorizes the EPA to treat Indian Tribes as states and to assign primary enforcement responsibility (primacy) to a Tribe in much the same way it assigns its enforcement authority to a state. The complete process of applying for primacy, developing an enforcement program, and being granted primary enforcement authority (being granted “primacy”) is complex. To assist in the process, the EPA may provide fUnding in the form of development grants. To receive funding assistance, a Tribe must commit itself to implementing a program for achieving primacy within a certain time frame. 2 ------- 1.3 Goals of This Handbook The goals of this HANDBOOK include assisting Tribes in: 1. Determining whether or not program primacy is in the best interest of a Tribe ( HANDBOOK Sections 2, 3, 4 and 6), 2. Applying to the EPA for “Treatment as a State” ( HANDBOOK Section 5), 3. Applying for a development grant ( HANDBOOK Section 7), and 4. Applying for primacy ( HANDBOOK Section 6). Primacy will be discussed in this HANDBOOK before presenting the procedures for applying for a development grant. Development procedures will make more sense after primacy is understood. Meeting all the primacy application requirements can be costly. Also, developing and running an enforcement program has political as well as economic costs. Therefore, four sections of this HANDBOOK are devoted to helping Tribes weigh the costs and responsibilities of primacy against the benefits it offers. The economic costs for some Tribes will far exceed the benefits. For these Tribes applying for and attaining primacy could be a costly mistake. Other Tribes may find they have many of the required political structures and operating facilities already in place. For these Tribes, applying for and attaining primacy may consist largely of assembling the needed records and fine-tuning existing programs. Still other Tribes may fall somewhere between these two positions -- achieving primacy may mean undertaking this process over a longer time frame, possibly five to ten years. This HANDBOOK will enable Tribal representatives to make an informed decision about whether or not to apply for primacy, and if so, when to apply for primacy. 1.4 How is This Handbook Used ? The usual sequence of activities a Tribe will undertake to be granted primacy is: 1. Determine if primacy is in the best interest of the Tribe; if yes, then 2. Apply for ‘treatment as a state”; 3 ------- 3. Apply for a development grant to help pay the costs of setting up a regulatory program that will enable the Tribe to qualify for primacy; 4. Develop a regulatory program through which Tribal water codes and regulations can be enforced; and 5. Apply for primacy program grants. Sections 2, 3 arid 4 of this HANDBOOK contain information and issues that should be considered and evaluated if a Tribe decides to seek primacy. Tribal ofiicials must thoroughly review the advantages/benefits and limitations/problems they will be confronted with, whether they decide to seek primacy or decide NOT to seek primacy. Section 5 describes the requ.- ments a Tribe must meet to receive “treatmenl as a state. Although the next ‘ogical step is to apply for a development grant (described in Section 7), the grant application process will be easier to understand after first looking at primacy requirements in Section 6. Section 6 also presents a detailed description of the primacy application process. This section gives an item-by-item description of what EPA expects a Tribe to be capable of doing if it is to be granted primacy. Only by understanding what is required to develop and run a regulatory program can a Tribe plan how it will go about reaching those goals. A Tribe must also realize that properly administering a primacy program involves significant responsibilities and costs that will continue after the Tribe achieves primacy. Section 7 discusses the funding that is available in the form of development grants to help Tribes develop regulatory programs. The expected limitations of EPA funding are also discussed in this section. Section 8 includes several worksheets or checklists that can be used to help a Tribe decide whether or not the benefits gained by achieving primacy outweigh the economic costs. 1.5 Definition of Ternis Throughout this HANDBOOK , many agency names, legal terms or other commonly used terms will be repeated. Some of these have specific legal meaning when used in government documents or pieces of legislation. Listed below are some of the terms Tribes need to understand. 4 ------- gn Water Act (CWM . An Act passed by the US Congress to control water pollution in streams, rivers and lakes. The Federal Water Pollution Control Act passed in 1972 (Public Law [ PU 92-500). It was amended in 1977 (Clean Water Act, PL 95-217) and again in 1987 (Water Quality Act, PL 100-4). The requirements for assuming authority under the Clean Water Act (CWA) for water pollution control are DIFFERENT from the requirements under the Safe Drinking Water Act (SDWA) for drinking water. There are no provisions for primacy under the Clean Water Act. Delegation of Authority . A Tribe is delegated authority after it has applied for, and received authority to administer, within Tribal lands, its Tribal regulatory program as the federal program under the Safe Drinking Water Act (SDWA). As used in connection with PWSS and UIC programs, the term does not connote any transfer of federal authority to a Tribe. Indian Lands. Indian lands means “Indian Country.” Indian country is (I) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; (2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and (3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Indian Tribe . A federally recognized Indian governing body carrying out substantial governing duties and powers over a defined area. Primacy . A status granted by the US Environmental Protection Agency to states and Indian Tribes for the purpose of primary enforcement responsibility (Primacy) for their drinking water programs. Public Water System Supervision ( PWSS ) Program . A program which allows states or Tribes to supervise and regulate public water supplies and ensure that safe drinking water is provided to their citizens. Safe Drinking Water Act (SDWM . An Act passed by the US Congress in 1974. The Act established a cooperative program among local, state and federal agencies to ensure safe drinking water for consumers. The Act has been amended by Congress in 1977, 1979, 1980, and 1986. The 1986 Amendments require EPA to develop regulations to enable Indian 5 ------- Tribes to administer the Public Water System Supervision (PWSS) and Underground Injection Control (UIC) Programs. “ Treatment as a State” . A status granted by EPA to those Indian Tribes that have established minimum levels of legal, political, and financial structures that enable the Tribe to promote and protect the health, safety and welfare of its citizens. Underground Injection Control (UIC) Profram . A program which allows states or Tribes to regulate the injection of liquids into the ground. The goal of the program is to prevent contamination of underground sources of drinking water (USDW) from injection well activities. (Example, the injection of brine wastes from oil recovery processes.) United States Environmental Protection Agency (EPA) . A US government regulatory agency established to administer the nation’s environmental laws. EPA deals with drinking water, surface water, groundwater, solid wastes, hazardous wastes, wastewater and air pollution. EPA is responsible for the enforcement of public drinking water rules and regulations. 6 ------- 2.0 ADVANTAGES AND LIMITATIONS OF PRIMACY This section was adapted from material prepa.red by Dr. Catherine Vandemoer, Executive Director, Wind River Environmental Quality Commission, Fort Washakie, Wyoming 82514. Mr. Tom Crawford, Training Environmental Consultants, 921 Monument Peak Drive, Gardnerville, NV 89410, also contributed to this section. The process of making the decision to seek or not to seek primacy -- or to undertake environmental protection programs in general — is extremely important at the “front end” of this kind of decision, and must involve a number of factors. The process involves the serious evaluation of a number of factors beyond the scope of this HANDBOOK before pursuing primacy program development. A Tribe considering primacy must carefully evaluate many issues. The major issues include; 1. Sovereignty and plans for self-determination, 2. Tribal administrative and organizational capacities, 3. Political/legal considerations, 4. EPA capacity to provide assistance (technical assistance and funding/grant programs), 5. Reservation environmental protection concerns (environmental/resource inventories, water quality sampling and protection, groundwater protection and land use planning), 6. Regulatory enforcement, 7. IHS programs, and 8. Continuing Tribal program responsibilities and costs after primacy is achieved. The implications for Tribes of each of these issues must be fully explored as a Tribe decides whether or not to seek primacy. Each issue has advantages/benefits and limitations/problems associated with it. Typical concerns that a Tribe should consider are listed on the following pages. 7 ------- PRIMACY ISSUES 1. SOVEREIGNTY AND SELF-DETERMINATION CONSIDERATIONS ADVANTAGES/BENEFITS LIMITATIONS/PROBLEMS - Tribe establishes drinking water rules and regulations and/or underground injection control for Tribal lands. Tribe establishes procedures for regulation and enforce-ment. Smaller Tribes could form a consortium to provide mutual assistance in achieving self- determination goals (formation of intertribal councils). Strengthening Tribal government and ability of Tribes to express regulatory jurisdiction over the actions of non-Tribal members performing wrongful acts on the reservation. - Must keep rules and regulations as strict as or stricter than the US EPA rules and regulations. - Must establish an independent regulatory organization with a professional staff to enforce drinking water rules and regulations. Costly to form and fund a separate Tribal agency for enforcement. Must establish an admini-strative procedures for civil enforcement against non-Indians. - Costs will vary depending on type of organization established, the number of participating Tribes forming the consortium and the amounts contributed by each. Consortium must be recognized as having enforcement capabilities on all member reservations. - Tribe must establish an administrative procedure for civil enforcement against non-Indians. Likely opposition from state and county governments may lead to legal challenges regarding the Tribes s authority to regulate the behavior of non-Tribal members within Tribal jurisdiction. 8 ------- ADVANTAGES/BENEFITS LIMITATIONS/PROBLEMS Opportunity for government-to- government relations in developing uniform, comprehensive regulations (for example, Tribal- state cooperative agreement. - TAS (“Treatment as a State”) designation strengthens jurisdictional control within the exterior boundaries of the reservation and provides, a means of limiting state encroachment. Linking water management to the sovereign authority of the Tribe and to Tribal government advances the practical (on-the-ground) aspects of sovereignty. - Development of programs that protect water quality strengthen and advance Winters** or reserved rights, which at this time are rights to water supply . - Conflicting environmental programs between states and Tribes on adjacent land may pose practical administrative problems; the lack of uniformity of regulations and procedures may create conflicts between states and Tribes (and possibly even between Tribes). - Tribe may experience problems and time delays attempting to obtain required approvals and statements from Tribal legal department and/or statements or remarks of Tribal Attorney General. - PL 280 States* and Tribal lands within these states may have to have environmental codes approved by the US Department of Interior and may be forced to work with the states, thereby raising the possibility of state encroachment and regulation of reservation resources. - Not only are environmental programs costly, but they require the development of technical expertise, which may or may not pose logistical problems in program development. * PL 280 States. A law passed in 1953 that extends state jurisdiction to Indian reservations in certain States. The law contains provisions for criminal and civil jurisdiction over Indian lands. ** Winters Doctrine. A 1908 court case which established an Indian Tribe’s right to water rights. When a reservation was established, water was set aside to fulfill the purpose of a reservation. 9 ------- ADVANTAGES/BENEFITS LIMITATIONS/PROBLEMS Tribal water suppliers could produce better quality drinking water, thus improving the health of all residents. - Most Tribes own and operate their public water systems. This could be a potential problem when applying for primacy because Tribe would be regulating itself. This potential conflict between the Tribe’s water utility group and enforcement group must be resolved to the satisfaction of EPA. - Conflicts between Tribe and federal installations operating water supplies, such as BIA. Also conflicts with public schools owned and operated by states. 2. TRIBAL ADMINISTRATiVE AND ORGANIZATIONAL CAPACITIES ADVANTAGES/BENEFITS LIMITATIONS/PROBLEMS - Strengthening of Tribal govern- ment. - Development and improvement of Tribal adminiltrative procedures. - Tribal governments would provide more direct services to Tribal members. - Integration of Tribal resource management functions. - Possible regulator-regulatee conflicts. - Developmçnt of additional administrative structures and programs may pose both organizational and funding problems, especially for small Tribes. - Total cost of program development and maintenance may be too expensive for Tribal government. - Unless accounted for, turnover in Tribal leadership could cause problems with a program. 10 ------- APYANTAGES/BENEFITS LIMITATIONS/PROBLEMS - Integration of the Tribal court system into dispute resolution regarding Tribal resources. - Regional recognition of Tribal government. - Opportunity to develop a Tribal organization, such as a Commission, to “neutrally” make decisions and develop policy regarding the regulation of the environment. Puts Tribal water authority in a higher Tribal political arena. 3. POLITICAL/LEGAL CONSIDERATIONS ADVANTAGES/BENEFITS LIMITATIONS/PROBLEMS - Enhancing/strengthening Tribal government and authority. - Potential legal fees jurisdictional authority, court cases. for ensuring including costly - Enhancing recognition of Tribal government by non-Indian interests and governments. - Civil regulatory jurisdiction over “checkerboard” situations within the exterior boundaries of reservation. - Enhancing Tribal code through the development of Tribal environmental laws specifically designed to meet reservation needs. - Successful implementation of a program requires careful development of internal Tribal administrative capabilities. - Moving too quickly may cause negative state response and legal action against Tribe by states and other non-indian entities. Take time to find out what are the competing claims and how strong are the issues. - General lack of knowledge and information regarding environmental problems on reservation may stall or delay program development unless a public eduction program is launched. 11 ------- 4. EPA ASSISTANCE PROGRAMS kDVANTAGES/BENEFITS LIMITATIONS/PROBLEMS A. Technical Assistance A. Technical Assistance Assistance in preparation of a - Limited EPA assistance available to development grant. primacy Tribes due to budget and other (1) Development plan resource limitations. (2) Programmatic and budgetary commitment from Tribal Council Provision of technical assistance in. - These are time-consuming procedures the development of programs, that often require approval. conducting surveys, developing regulations and organizing data - There are monetary considerations for gathering, storage and analysis hiring professional staffs and services to procedures. carry out these programs. B. Funding/Grant Programs B. Funding/Grant Programs Available Funding for Tribes. - Tribes must provide at least 10% matching funds. (In-kind services may Public Water Supply be used.) Costs can escalate and require Supervision a Tribe to spend a great deal to get its FY 89 $669,000 program started. In the future, the new FY 90 $786,000 SDWA regulations will signi-ficantly increase the total program costs for Underground Injection Control everyone. The amount of money FY 89 $ 525,000 available from EPA will not be enough FY 90 $ 558,000 to cover Tribal program costs and Tribes will most likely be expected to contribute at least 50% of the costs. Total available funding must be shared by participating Tribes. [ The matching fund arrangement is actually quite flexible. Tribes may conthbute in-kind service, including equipment and staff time, and some federal activities (such as work performed under PL-638 contract, for example) may also qualify as conthbuting to the matching fund requirements.] 12 ------- 5. ENVIRONMENTAL PROTECTION CONCERNS ADVANTAGES/BENEFITS LIMITATIONS/PROBLEMS - Development of data useful to long-term natural resource management decision making. - Employment of Tribal members in natural resource inventories, sampling and environmental protection. - Enhancement of Tribal self- detennination and its link to environmental protection; enhancement of Tribal government’s role in regional environmental management decisions. - Cost of sampling, data acquisition, data management and reporting above level of EPA grant assistance. - Cost of technical expertise and staff development. - Possible litigation through the assertion of Tribal jurisdictional authority over land and water resources. 6. REGULATORY ENFORCEMENT ADVANTAGE/BENEFTF LIMITATION/PROBLEM - Tribal agency will be responsible for regulating and enforcing compliance, even in cases of violations by water utilities and owners/operators of underground injection wells. - EPA will require the Tribal agency to perform regulating and enforcing duties. If the Tribe does not perform ItS enforcement duties, EPA must take over primacy and conduct necessary enforcement actions. 13 ------- 7. IRS PROGRAMS ADVANTAGES/BENEFITS LIMITATIONS/PROBLEMS - IHS technical assistance can be utilized to help develop primacy applications and programs. - IHS may be able to assist the Tribe in seeking matching funds for a Tribal regulatory/enforcement agency. - ifiS will continue to provide technical assistance and funding for water system improvements after a Tribe obtains primacy. - The availability of IHS technical capability and assistance may not satisfy primacy requirements for in-house staff expertise. - iRS funds cannot be used to support regulatory/enforcement agency. - If the Tribe adopts standards tougher than EPA standards, the scope of IHS services may drop because of increased construction costs to meet the higher standards. Also, IHS may no longer be able to perform some activities that would now be deemed regulatory, such as plan reviews and sanitary surveys. The Indian Health Service (IHS) is a service agency and not a regulatory agency. IRS has construction funds for water systems on Indian reservations, but most of these funds can only be used to serve new housing. These funds cannot be used to support the operation/maintenance of Tribal water systems or support Tribal regulatory programs. However, subject to the availability of IHS staff, IRS will provide technical assistance to all Tribes regarding most environmental health matters. Additionally, all IHS services are discretionary and not an entitlement. 14 ------- 3.0 HOW MUCH MONEY IS AVAILABLE? EPA funds are extremely limited. Current funding levels for development grants and primacy program grants are listed below. FUNDING FOR PWSS FY89 FY90 FY91 TRIBES S 669,000 S 786,000 S 949,000 FUNDING FOR UIC FY89 FY90 FY91 TRIBES S 525,000 $ 558,000 $ 525,000 EPA will allocate these funds for Tribal primacy development grants and Tribal primacy program grants. A Tribe could receive an annual primacy program grant from EPA to maintain its primacy program, but states currently receive LESS than 50 percent of their primacy program funding from EPA. The total amount of funds available from EPA is not expected to increase significantly in the future. This means that available funds from EPA will not be enough to cover Tribal program costs. New regulations are currently being developed by EPA that will significantly add to the costs of administering a Tribal primacy program in the future. Also the SDWA regulations are becoming more comprehensve and strict, and will require a greater Cffort for a Tribe to develop regulations at least as stringent as EPA’s regulations. In addition, the number of Tribes competing for funding for development grants and primacy program grants is going to increase. This means that Tribes may receive smaller and smaller amounts of funds from EPA at the same time that the demands for stricter levels of compliance will come into effect. 15 ------- 4.0 WHAT ARE THE TRIBE’S RESPONSIBILITIES AFTER GAINING PRIMACY? Continuation of primacy for a Tribe, as in the case of the states, is dependent upon maintaining an adequate program that complies with new and revised EPA rules, system oversight and also supervision and enforcement of violations of the requirements. EPA now regulates 30 contaminants and is scheduled to regulate 53 more over the next two or three years. In addition EPA has been mandated by Congress to add 25 additional contaminants to the list every three years after that. Within five years the list will contain over 100 regulated contaminants (see Figure 1). The Tribe will be responsible for monitoring all regulated contaminants. Contaminants R.gul.td Pura sM to ths Public Wat.r Supply Program Figure 1. Increasing numbers of regulated contaminants 250 I I • : • • 0 Yew 16 ------- If a Tribe does not fulfill its primacy obligations, EPA would be forced to revoke a Tribe’s primacy status and take over the program’s supervision and enforcement responsibilities. This means a high standard of performance will be placed on Tribes who are granted primacy. This is the same standard that is applied to states. It is the Tribe’s responsibility to assure sufficient funds are available to maintain an adequate primacy program, regardless of EPA’s year-to-year funding availability. This could be a serious drain on a Tribe’s financial resources. When a Tribe attains primacy, it should consider this to be a permanent StatUS. A Tribe should not consider applying for primacy on a “trial” status — it should be 100% certain that it is willing and capable of running the program indefinitely. So far this HANDBOOK has reviewed the issues a Tribe should consider when attempting to decide whether or not to seek primacy. There is one more important consideration -- “How much paper work is required? In the remainder of this HANDBOOK , the procedures that must be followed to achieve primacy will be outlined. Section 5 deals with “Treatment as a State,” Section 6 covers the “Primacy Program,” and Section 7 outlines the “Development Grant Program.” 5.0 “TREATMENT AS A STATE’ 5.1 What Is “Treatment a State” ? Whenever the federal goveni ent gives a state authority to enforce a federal law, administer a program, or in sor- way act on behalf of the federal government, it requires the state to have certain .cgal and political structures in place that enable the governing body to promote and protect the health, safety and welfare of its citizens. Unlike states, Tribal governmental structures vary widely among Tribes. The duties and powers exercised by these governments also vary widely. Therefore, before EPA will assign enforcement powers, or primacy, to a Tribe, it is necessary for each Tribe to present evidence in its application that it: 1. Is a federally recognized Tribe; 2. Promotes and protects the health, safety and welfare of its citizens; 3. Has legal jurisdiction over a certain population and area; and 4. Has or could develop the ability to carry out the programs it is asking for authority to administer on behalf of the federal government. 17 ------- When a Tribe demonstrates all of this, it receives EPA recognition and is eligible for “treatment as a state.” In simpler terms, “treatment as a state” status means the federal government (through the EPA) agrees that the Tribe has the same right as any state to apply for program supervision and enforcement authority under the Public Water System Supervision Program and the Underground Injection Control Program. 5.2 What Will EPA Expect in an Application ? In presenting an application, the EPA requires a Tribe to submit various kinds of “core” information. The Tribe is asked to provide copies of documents, Tribal organization charts with lines of authority, and maps defining Tribal lands. In many cases, however, a Tribe will also be asked to provide written explanations or descriptions of how the Tribe operates. EPA allows fairly wide flexibility in the format of the presentation, and will consider Tribal applications on a case-by-case basis. Keep in mind, though, that someone at EPA has to read and understand this material well enough to decide whether or not the Tribe meets the cntena. Descriptions should be clear and to the point. The EPA reader must obtain a general sense of how the Tribe functions and who exercises what authority. All the details of Tribal governing procedures need not be recited. The important characteristics should be described and detailed. Copies of relevant Tribal codes, bylaws or other documents should be attached. A Tribe’s goal is to show in its application that it meets the four criteria listed below and is therefore eligible for “treatment as a state”: 1. The Tribe is recognized by the Secretary of the Interior, 2. The Tribe has a governing body carrying out substantial governmental duties and powers over a defined area, 3. The Tribe has jurisdiction to perform the functions necessary to regulate public water supplies and/or injection wells which are the subject of its application, and 4. The Tribe can “reasonably be expected to be capable” of administering the federal drinking water regulations and providing an effective Public Water System Supervision (PWSS) program and/or Underground Injection Control (UIC) program. 18 ------- Another very important factor is to document the Tribe’s fiscal procedures and status. This can be done by submitting procurement and accounting procedures, audit reports or results of audits. 5.3 What Items Should Be Submitted With Your Application ? This section contains references to requirements for applications under the Public Water System Supervision (PWSS) program, the Underground Injection Control (UIC) program, or both programs at once. At this time, you may not have any idea which program you’ll apply under, if you decide to apply at all. In very brief terms, a Tribe’s four options are: 1) Apply for “treatment as a state” under the Safe Drinking Water Act to administer and exercise primary enforcement authority ver one or more public water supply system; 2) Apply for “treatment as a state” under the Safe Drinking Water Act to administer and exercise primary enforcement authority over and underground injection control program; 3) Apply for primacy in both programs; or 4) Make no change in your current status. Application requirements for the two programs are very similar but not identical. There is a “core” of information required by both, but each program also requires some other specific information. At this point you should have a good idea of what the process involves. If a Tribe has qualified for “treatment as a state” under the Clean Water Act (CWA), then the Tribe does not have to qualify again under the Safe Drinking Water Act (SDWA). The remainder of this section will focus on the specific details of submission requirements. 19 ------- The following information on submission requirements is adapted from a 1989 memorandum by Robert J. Blanco, Director of EPA State Programs Division, to Drinking Water Branch Chiefs in Regions I-IL and IV-X. (The complete text of the memorandum and attachments are included in Appendix 1. See Section II, “Treatment as a State,” Blanco memo pages 3 to 11.) These requirements are outlined in Table 1 on pages 25, 26 and 27. “ TREATMENT AS A STATE ” 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. 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) ‘ Governine body carrvlna 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. The narrative statements required by the regulatIons (142.76(b) for the PWSS program and 145.56(b) for the T.JIC 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 terms served. 20 ------- (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 iurisdllction. ” In order to assume responsibility for an environmental regulatory program, the Tribe must have regulatory authority over the geographic area in question. The Tribe must demonstrate its legal authority over the area in question. The Tribal Attorney General, or an equivalent officer, must submit a statement certify ing that the Tribe possesses sufficient authority to regulate and enforce the PWSS and/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, specific language maintaining the assertion should be highlighted or excerpted 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 influenced by the programs (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. 21 ------- (4) “ Reasonably expected to be canable. ” 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 in this section along with an explanation of the information which must be provided. (a) Previous management experience (142.76(d)(1) and 145.56(d)(1)]. The Tribe’s managerial skills will be evaluated on the basis of their 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 adminiiters or has administered, and provide a copy of each. The Tribe should also 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 governing 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 their record of progress in enforcing the provisions of each program. (If this information has been provided 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 insure that it meets established federal guidelines (e.g., 25 CFR 271.46). 11 ------- (ci) Entities which exercise the executive. Ieaislative. and judicial functions of Tribal eovernrnent [ 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. 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. 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. (c) ADoellate 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. (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. (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 the background of court officials should be provided. 23 ------- 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. (I) Existing or proposed agency of the Indian Tribe which will assume primary enforcement responsibility (142.76(d)(5) and 145.46(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. The Tribe should clearly indicate the independence/separation of the owner/regulator entities within the Tribe. EPA will determine in 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)J. The Tribe must provide a description of the technical and administrative capabilities of the 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. 24 ------- The Indian Health Service (IHS) presently provides varying levels of assistance to Tribes. Many of the areas in 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. EPA Regional Offices should recognize these IHS Tribal agreements; however, these agreements will need to clearly define the responsibilities of I llS and the Tribe. The Tribe should commit to assume full responsibility for these functions. 25 ------- I ’ ) TABLE 1. OUTLINE OF INFORMATION REQUIRED IN AN APPLICATION FOR “TREATMENT AS A STATE” CRITERIA NARRATIVE DESCRIFI’ION SUPPORTING DOCUMENTS 1. Federal recognition None Copy of BIA Federal Register listing or copies of other paperwork from Secretary of Interior or copy of Congressional Act signed by the President 2. Possesses and exercises substantial governmental duties and powers Description of current governmental functions performed, including policy setting, taxation, eminent domain Description of currently effective tribal laws Description of Tribe’s organizational structure, powers exercised by each entity (executive, legislative, and judicial), method of selection and term of office of governing members Copy of Tribal documents establishing authority such as bylaws, charter, constitution 3. Tribal jurisdiction Statement by Tribal Attorney General (or equivalent official) that the governmental duties and powers exercised by the Tribe are with the authority of the Tribe Map or legal description of area of authority showing boundaries, public water supply systems and/or underground injection wells Copies of (or relevant portions of) treaties, codes, resolutions, etc., relating to this authority ------- (b) Existing programs administered by the Tribe (c) Accounting and procurement system (d) Existing legal and judicial entities NOTE: You need not repeat information already provided in earlier sections Description of existing managerial capabilities emphasizing successful managerial performance of public health programs Describe each program Describe each system (must meet minimum federal guidelines) See Note at No. 4 above - describe Tribal court system or the agency that functions in judicial matters. (Be complete and specific in this area.) Describe how the Tribe develops, administers, and enforces regulations; settles disputes Project summaries, evaluations; (may include contracts under Indian Self- Determination Act, Indian Minerals Development Act) Copies of related Tribal laws, regulations and policies Documents outlining procedures, controls, etc. Tribal laws or codes establishing or defining authority, legal jurisdiction, enforcement authority TABLE 1. OUTLINE OF INFORMATION REQUIRED IN AN APPLICATION FOR “TREATMENT AS A STATE” (Continued) 4. Tribal capability (a) Previous experience CRITERIA NARRATIVE DESCRIPTION SUPPORTING DOCUMENTS ------- (e) Agency to assume primary enforcement responsibility (f) Technical and administrative expertise of staff Describe the existing or proposed Tribal agency; its status in relation to other Tribal governing agencies; its relationship to owners/operators of the public water systems or underground injection wells it seeks to regulate Describe specific technical and administrative experience and abilities of present staff members; or, describe proposed position qualifications Describe how Tribe will obtain funds to pay for needed expertise Organizational chart showing agency’s relationship to other Tribal agencies; documents establishing authority Resumes of current staff; lists of projects managed, courses taken, certifications TABLE 1. OUTLINE OF INFORMATION REQUIRED IN AN APPLICATION FOR “TREATMENT AS A STATE” (Continued) CRITERIA NARRATIVE DESCRIPTION SUPPORTING DOCUMENTS I ’ ) co ------- 5.4 How Does the Application Review Process Work ? An application for “treatment as a state” should be submitted to the EPA Regional Administrator (a list of EPA regional contacts can be found in Appendix 2). The first application for “treatment as a state” to each EPA Region must also have approval (concurrence) by EPA Headquarters in Washington, DC, before the Region can approve the application. If the EPA has previously determined that a Tribe has met the requirements for “treatment as a state” for programs authorized under the Clean Water Act or the Safe Drinking Water Act, then that Tribe only needs to provide the information unique to the PWSS and/or UIC program. Within 30 days of receiving a complete application, the Regional Administrator will notify any groups or agencies who might have reason to dispute the Tribe’s claims of jurisdiction. Only “appropriate government entities” bordering on the Tribe’s lands will be notified. These agencies include federal land management agencies, state governments*, and other Tribes. Such agencies might include: o National Park Service o Department of Defense o Department of Energy o State Department of Natural Resrouces o State Health Departments o Other Indian reservations that are located within or adjacent to the applicant’s Tribal lands. EPA will also request a review of the application by the Office of Regional Counsel and other water program staff. The Regional Indian Affairs Coordinator may also be involved, as appropriate. Upon receipt of the above notification, the agencies then have 30 days to comment on the Tribe’s claims of jurisdiction. If no agency disputes the Tribe’s assertion of jurisdiction, EPA will finish processing the application within an additional 30 days. If one or more agencies or groups dispute the Tribe’s jurisdiction, the EPA Regional Administrator will confer with the Secretary of the Interior to resolve the competing claims as quickly as possible. In summary, application reviews are conducted within a 90-day period, as indicated by the following table. A sample application letter for “treatment as a state” is included on page 30. * State(s) jurisdictional assertion is dealt with at the Governor’s level. The state(s) may identify and notify local governmental agencies. 29 ------- “TREATMENT AS A STATE” APPLICATION PROCESB Tribe Submits “Treatment as a Stats” Application within 30 days 142.76 (PWSS) 145.58 (UIC) I Regional Administrator Notifies “Appropriate Governmental Entities” within 30 days 142.76 (PWSS) 145.58 (UIC) Appropriate Governmental Entities Submit Conments (To be limited to program specific jurisdiction) within 30 days 142.76 (PUS) 145.58 (UIC) Regional Administrator Notifies Tribe of Eligibility to Apply for Grants I 30 ------- 5.5 Sanmle Letter of Application SUGGESTED DRAFF: AN EXAMPLE OF APPLYING FOR “TREATMENT AS A STATE” FOR A PWSS PROGRAM (Insert appropriate Regional information) ____________ (Name), Chief Drinking Water Branch Water Management Division Environmental Protection Agency ______________ (Street Address) ___________ (City, State, Zip Code) ATFN: _____________ (Name), Indian Lands Coordinator Dear __________(Name): Please consider this letter to be our application to qualify for “treatment as a state” in regard to the Public Water System Supervision Program under the Safe Drinking Water Act. We are submitting the following information: (1) Tribal organizational structure, including the powers exercised by each entity: executive, legislative and judicial. (2) Description of the programs instituted to promote the health, safety, and welfare of Tribal members. (3) Description of taxing authority of the Tribe. (4) Documentation showing that the Tribe has the authority to exercise the power of eminent domain. (5) Description of existing managerial capabilities emphasizing successful managerial performance of public health programs. Examples are: (a) Summaries of appropriate federal and/or state grants/contracts the Tribe receives and any associated evaluations. (b) Summary of each environmental health program the Tribe manages and which Tribal entity oversees the program. 31 ------- 2 (c) Description of Tribe’s accounting and procurement system. (d) Description of the Tribal agency that will assume primary responsibility, including discussion of owner/operator conflict. (6) A map defining exterior boundaries of the reservation, including location of public water supply wells or surface water intake. (7) A signed statement from Tribal Attorney General (or equal official) that the governmental duties and powers exercised by the Tribe are within the authority of the Tribe, and that the undersigned has the authority to represent the Tribe in this matter. Within 30 days of receiving our “treatment as a state” application, we expect the EPA to notify the appropriate governmental agencies in our area of this application. We note that each governmental agency will have 30 days to comment upon our assertion of jurisdiction. Please keep us advised of the status of our application. If additional information is needed, please contact _______________ ________ Tribal ________________________ at _________________________ Sincerely yours, Tribal Chairperson Enclosures 32 ------- 6.0 PRIMACY PROGRAM 6.1 When to Seek Primacy . When an Indian Tribe demonstrates that it has the ability to protect the public health by regulating public water supplies and groundwater, EPA may assign its enforcement authority to that Tribe. When this occurs, the Tribe takes on the role of primacy or main enforcer of the adopted Tribal regulations concerning safe drinking water and/or protection of reservation groundwater. These Tribal adopted regulations are at least as stringent as the National Primary Drinking Water Regulations (NPDWR). That is to say, the Tribe is granted primacy. Primacy is n L: o A source of funds to build or make repairs to a public water supply system o A program to subsidize water bills o Authority to regulate a water system outside the Tribe’s area of jurisdiction o Funding to purchase equipment o Freedom to operate a public water supply system without EPA oversight o Authority to threaten an underground source of drinking water (USDW) with contamination by underground injection Primacy brings regulatory control closer to home in the sense that a Tribe is closer to the systems being regulated than is the EPA. The Tribe is still required to adopt and enforce safe drinking water regulations and codes which are at least as strict as EPA’s regulations. The Tribe’s regulatory actions will still be closely monitored by the EPA via semi-annual and annual program reviews. Continuation of primacy for a Tribe, as in the case of the states, is dependent upon maintaining an adequate program of keeping up with new EPA rules, system oversight, and also supervision and enforcement of violations of the requirements. New EPA rules and regulations must be implemented and enforced. EPA now regulates 30 contaminants, is scheduled to regulate 53 more over the next two or three years, and has been mandated by Congress to add 25 additional contaminants to the list of 83 every three years. 33 ------- 6.2 How Does a Tribe Demonstrate It Is Ready for Primacy ? To be granted primacy for the Public Water Supply Supervision (PWSS) program, a Tribe must demonstrate to EPA that it meets five basic requirements (contained in 40 CFR 142.10): 1. The Tribe has adopted drinking water regulations at least as stringent as EPA’s drinking water regulations under the SDWA. 2. The Tribe has adopted and implemented procedures to enforce these regulations. 3. The Tribe has established a record keeping system and will provide the reports required by law. 4. The Tribe can demonstrate that if it might grant variances or exemptions from drinking water standards, the Tribe will do so in a manner that protects public health. 5. The Tribe can demonstrate that it has adopted and implemented a plan to provide safe drinking water in emergency circumstances. At the present time, very few Tribes have demonstrated that they now meet all (or even most) of these requirements. The purpose of the three (for PWSS) to four-year (for UIC) development process is to help Tribes set up the organizational structure needed to become a regulatory authority, to achieve the technical expertise essential to administer a public water system supervision program in accordance with safe drinking water regulations, to set up appropriate accounting and record keeping systems, and to manage water supplies in a manner that protects public health. To accomplish this EPA provides both technical and financial assistance in the form of program development grants (development grants for developing a Tribe’s regulatory program will be discussed in Section 7). Construction grants cannot be used for these purposes. As you read through the remainder of this section, keep in mind that a Tribe needs to develop a plan that will take it from Point A to Point B in order to achieve primacy: Point A is where you are today in terms of the following five requirements; Point B is where you need to be to qualify for and retain primacy. 34 ------- 6.3 What Are the Details of the Public Water System Supervision (PWSSI Requirements? Requirement #1 A Tribe must adopt drinking water regulations which are no less stringent than the National Primary Drinking Water Regulations in effect under sections 14 12(a) and 1412(b) of the Safe Drinking Water Act. These regulations describe Maximum Contaminant Levels (MCLs), which are the highest (maximum) levels of contaminants that are allowed in public drinking water supplies, treatment technique requirements, and the analytical and reporting requirements under the SDWA. Appendix 3 contains a current listing of MCLs for substances (contaminants) that EPA has determined should be regulated. To comply with this first requirement for primacy, a Tribe must adopt drinking water regulations that are at least as strict as the ones EPA uses. The EPA regulations are becoming increasingly more stringent and the number of contaminants to be regulated will continue to grow. The primacy agency will be responsible for keeping abreast of new EPA rules and regulations and for implementing them. Requirement #2 A Tribe must adopt and implement adequate procedures for the enforcement of Tnbal drinking water regulations. To meet this requirement concerning enforcement procedures, a Tribe must demonstrate that it has set up a Tribal organization or made arrangements with outside agencies to accomplish the functions described below: o Maintain an inventory of public water systems (manual or computerized data system of PWSS program and compliance information). o Set up a systematic program for conducting sanitary surveys of public water systems within the Tribe’s jurisdiction. Depending on the number of systems a particular Tribe seeks to regulate, this may be a fairly simple task. If several public water systems are involved, however, the task might require a substantial commitment of personnel and funds. Some Tribes have made arrangements with the Indian Health Service (IHS) to conduct sanitary surveys’ for them. Such an ‘Sanitary Survey. A detailed evaluation and/or inspection of a source of water supply and all conveyances, storage, treatment and distribution facilities to ensure its protection from all pollution sources. 35 ------- arrangement could continue during the time the Tribe is developing its primacy programs, but EPA would prefer the Tribe to assume full responsibility for conducting sanitary surveys within a definite time period which would be spelled out in the development plan. o L.aboratory analyses of public drinking water supplies. The Tribe must be able to demonstrate that it has made arrangements with a state or EPA certified laboratory (or more than one laboratory, if necessary) to perform all the tests EPA requires for regulated contaminants. Contracts or other formal agreements must be in place before EPA will grant primacy. o Review of new or substantially modified public water system facilities (plans and specifications) to ensure compliance with primary drinking water regulations. As with sanitary surveys, many Tribes have agreements with IHS to review plans for new or modified facilities. EPA expects Tribes to develop the basic capacity to perform this function themselves. The development plan should describe when and how this expertise will be developed. o Demonstrate the Tribe’s authority to compel compliance with primary drinking water regulations. The areas of enforcement authority and enforcement procedures are two of the most complex areas to be considered in a primacy application. Because Tribal court systems vary so widely from Tribe to Tribe, EPA requires a detailed description of the Tribal court system in an application for “treatment as a state”. Based on the information supplied with that application, EPA will try to determine whether non-Indians as well as Indians can be assured of “due process” in a Tribal court. In the “treatment as a state” application, the Tribe will also have documented its area of jurisdiction and described the existing or proposed agency which will be responsible for enforcing primary drinking water regulations. To be granted primacy, the Tribe must further define how it will enforce the regulations and how it will assess and collect penalties for violations of the regulations. The primacy application must provide evidence that the Tribe can meet the following conditions: o The Tribal enforcement agency must be able to immediately restrain any person engaging in an activity which endangers or causes damage to public health or the environment as it relates to the public drinking water system supervision (PWSS) and underground injection control (UIC) programs. o The Tribal agency administering the program must have the means to sue in courts to stop any threatened or continuing violation of any PWSS program requirement. 36 ------- o The Tribal agency administering the program must have the means to assess civil penalties or sue in court to recover civil penalties for violations of primary drinking water regulations. The Guidance Memorandum prepared by Robert J. Blanco contains a description of the enforcement mechanisms a Tribe must develop to qualify for primacy (see Appendix 1, Section (4), pages 13 to 15 of that Memorandum). (4) Enforcement actlvftles (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 at least equal to the benefit received by noncompliance. A reasonable effort implies that the Region and the Tribe work together on a case-by-case basis.] The Tribe must also have (or develop) the mechanisms to restrain immediately and effectively any person engaging In 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 court 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. Federal facilities (except the Department of the Interior which serves as a trustee for Indian Tribes (see Section 1447 of SDWA) 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. 37 ------- 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 the filing of criminal charges for willful violations 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 its 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. Specific procedures for the handling of criminal cases should be developed. As noted earlier, these .procedures must be in the Memorandum of Agreement for the tJIC program; for the PWSS program, they can be in any document. Requirement #3 The Tribe must establish and maintain record keeping procedures and submit reports of its activities as required by the EPA. The record keeping system does not necessarily have to follow any prescribed format. It may be a manual (as opposed to computerized) system, but must meet minimum federal guidelines. The outline below is a very simple, basic file system for compliance monitoring. FILE SYSTEM FOR COMPUANCE MONITORING General Considerations (1) File by Alpha/Numeric Code (2) Breakdown by State, County, PWS (3) Must be a file for each PWS (4) File should be expandable (sub-divided) folders 38 ------- Data in Each PWS File (Sectional File) (1) Inventory (facility characteristics) (2) Water Quality History and Monitoring Requirements (3) Sanitary Survey Reports (4) Public Notice Actions (5) Enforcement (Admin./Legal) Actions (6) Correspondence (7) Variance/Exemptions Actions V/E will be a separate file prior to completion (8) Variance/Exemption Compliance Schedule Requirement #4 If the Tribe grants variant or exemptions, or both, from the requirements of its primary drinking waxer reg.iiations, it will do so under conditions and in a manner which is no less stringent than required by sections 1415 and 1416 of the SDWA. To meet this requirement, it will be necessary to fully understand sections 1415 and 1416 of the SDWA. In very general terms, a variance may be granted when the characteristics of the raw water sources are such that the PWS (Public Water Supplier) cannot reasonably meet the established Maximum Contaminant Levels even after applying the best available treatment (BAT) methods. The granting of a variance must not result in conditions which endanger public health, and the variance is granted for a limited time only. The PWS will be given a date by which it must eventually meet the MCL specified for primary drinking water regulations. An exemption from compliance with specific MCLs or treatment techniques may be granted if, due to compelling factors (including economic factors), the PWS is unable to comply, the system was already in operation when the requirement took effect, or a new system has no reasonable alternative source of supply, granting the exemption will not result in an unreasonable health risk. As with a variance, a timetable for compliance will be established but 39 ------- extensions may be granted in the case of financial hardship. In both cases (variances and exemptions) the PWS must eventually meet the requirements and must show continued progress in that direction. Even this brief description of variances and exemptions is enough to indicate some of the capabilities a Tribe will need to develop to be granted primacy. A few of the required capabilities are: o A thorough understanding of the provisions of the Safe Drinking Water Act. o An administrative agency with personnel capable of interpreting MCL requirements, system data, financial data, treatment techniques, and the costs of implementing treatment options. o A record keeping system that provides accurate data on raw water characteristics, sampling results, costs, revenues, compliance activities, etc. Requirement #5 The Tribe must show that it has adopted and can implement an adequate plan to provide safe drinking water under emergency circumstances such as fire, flood, drought, earthquakes, or sabotage. In preparation for emergency circumstances, the Tribe should identify alternate sources of safe drinking water. These sources could include bottled water, other Tribal water supplies or neighboring communities. A means of delivering drinking water from an alternative source to persons impacted by various types of emergencies should be described. 6.4 What Are the Primacy Requirements for Underground Injection Control (U1C Programs ? The Treatment as a State TM and Development Grant procedures are similar for Tribes seeking and attaining primacy for their public water supply supervision (PWSS) program or for their underground injection control (UIC) program. Section 6.3 outlined specific requirements for the PWSS program. This Section outlines specific requirements that a Tribe must consider for attaining primacy for an underground injection control (UIC) program. Each EPA Region has specific requirements that must be met to receive approval for a UIC program so a Tribe must work closely with its EPA Regional representatives to determine the detailed information. 40 ------- The underground injection control (tJIC) program is essential to protect underground sources of drinking water (USDW) from contaminants and hazardous wastes that are injected underground. Specific examples that a UIC program may control include regulating underground injection by petroleum companies on Tribal lands, controlling multi-family septic tank subsurface leaching wells and the locating and plugging of abandoned injection wells. Under no circumstances are injected fluids to cause USDW to exceed drinking water maximum contaminant levels (MCLs) in groundwater. Background 40 CFR 145.21 (3) and 145.22 (3) list the Attorney General’s statement as one of the required elements necessary for the submission of an acceptable UIC program. This statement is a certification by a qualified representative of the Tnbe (or Tribal Agency) stating that the Tribal statutes, administrative regulations, and judicial decisions demonstrate adequate authority to administer a program for the protection of underground sources of drinking water. The Tribe is required to demonstrate that it has adequate authority to carry out the program submitted under S 145.22 and which meets the requirements of 40 CFR Parts 144, 145 and 146. This guidance is intended to apply to Class I, ifi, IV, and V wells, and also Class II wells submitted with a program meeting the requirements of 40 CFR Parts 144, 145 and 146 (see Section 6.5, “What Do the Classes of Wells Mean?”, page 41 for definitions of the classes of wells). Nevertheless, the guidance may be used as an example for Tribal programs submitted under Section 1425 guidance since the statement of legal authority may consist of a simple certification by the legal representative of that Tribe, a full analysis of the legal basis for the Tribal program, including case law as appropriate. If the Tribe chooses to submit a certification, the program description should detail the legal authority on which the various elements of the Tribe’s program is based. The “Attorney General’s Statement” should address the following topics: 1. Prohibition of Unauthorized Injection 2. Prohibition of Endangering Drinking Water Sources 3. Prohibition of Movement of Fluid into a USDW (Underground Source of Drinking Water) 4. Authority to Issue Permits or Rule 5. Authority to Impose Conditions upon Authorized Injection Activities 41 ------- 6. Authority to Impose Compliance Evaluation Requirements 7. Authority to Take Enforcement Requirements 8. Authority for Public Participation in Permit Processing 9. Authority to Apply Technical Criteria and Standards for the Control of Underground Injection not less stringent than 40 CFR Part 146 (Section 1421(a)(1) and (b)(1)) 10. Classification of Injection Wells 11. Elimination of Class N Wells (wells used to dispose of hazardous and radioactive wastes) 12. Authority to Identify Aquifers that are Underground Sources of Drinking Water (USDW) and to Exempt Certain Aquifers (40 CFR 144.7 and 145.22) 13. Authority Over Federal Agencies and Persons Operating on Federally Owned or Leased Property 14. State Authority over Indian Lands (Not applicable to Tribes) 15. Authority to Revise Tribal Underground Injection Control Programs (Section 1422(b)(1)(B) and 40 CFR S 123.13) 16. Authority to make and keep Records and make Reports on its Program Activities, all as prescribed by the Environmental Protection Agency (Section 1422(b)(1)(A)(ii), 40 CFR S 144.8, S 145.14 and S 145.24 17. The Tribe must have authority to make available to EPA upon request, without restriction, any information obtained or used in the administration of the Tribal program, including information claimed by permit applicants as confidential (4OCFR S 145.14) 18. Certification of Status as Independent Legal Counsel (Fo be used if Tribal agency counsel has prepared the statement.) 19. Signature of the Attorney General or Independent Legal Counsel 42 ------- See Appendix 4 for an example Underground IfljeCtiOfl Control (TJIC) Program Attorney General’s Statement. 6.5. What Do the Classes of Wells Mean ? A well is defined as a bored, drilled or driven shaft or dug hole whose depth is greater than the largest surface dimension. There are five classes of injection wells which are regulated by the UIC program. A specific well classification is made by determining the type of fluid to be injected and the geologic area into which the fluid is to be injected. Injection well classes are summarized as follows: Class I Class I wells are municipal and industrial disposal wells (including wells used by generators of hazardous waste and owners of hazardous waste management facilities) which inject fluids below the lowermost formation containing, within one quarter mile of the well bore, an underground source of drinking water. Class II Class 11 wells are associated with oil and gas production or liquid hydrocarbon storage. These wells inject fluids which are brought to the surface for the enhanced recovery of oil and natural gas and for the storage of hydrocarbons. Class Ill Class Ill wells inject fluids for the extraction of minerals and are used in conjunction with solution mining of minerals. Class IV Class IV wells are used by generators of hazardous and radioactive wastes. These wells inject into or above a formation which within one quarter of a mile of the well contains an underground source of drinking water. Class IV wells are prohibited. Class V Class V wells are wells which do not meet the criteria listed for Classes I through IV. EPA currently recognizes 32 types of Class V wells. Generally, wells covered under this classification inject non-hazardous fluids into or above formations that contain underground sources of drinking water. Examples of Class V wells include the following: 1. air conditioning return flow wells used to return to the supply aquifer the water used for heating or cooling in a heat pump; 43 ------- 2. cesspools including multiple dwelling, community or regional cesspools, or other devices that receive wastes which have an open bottom and sometimes have perforated sides. The UIC requirements do not apply to single- family residential cesspools nor to non-residential cesspools which receive solely sanitary wastes and have the capacity to serve fewer than 20 persons a day; 3. cooling water return flow wells used to inject water previously used for cooling; 4. dry wells used for injection of wastes into a subsurface formation; 5. drainage wells used to drain surface fluid, primarily storm runoff, into a subsurface formation; 6. recharge wells used to replenish the water in an aquifer; 7. salt water intrusion barrier wells used to inject water into a fresh water aquifer to prevent the intrusion of salt water in the fresh water; 8. sand backfill and other backfill wells used to inject a mixture of water and sand, mill tailings or other solids into mined out portions of subsurface mines regardless of whether or not it is a radioactive waste; 9. septic system wells used to inject the waste of effluent from a multiple dwelling, business establishment, community or regional business establishment septic tank. The UIC requirements do not apply to single- family residential septic system wells, nor to non-residential septic system wells which are used solely for the disposal of sanitary wastes and have the capacity to serve fewer than 20 persons a day; 10. subsidence control wells (not used for the purpose of oil or natural gas production) used to inject fluids into a non-oil or gas producing zone to reduce or eliminate subsidence associated with the overdraft of fresh water; 11. radioactive waste disposal wells other than Class W; 12. injection wells associated with the recovery of geothermal energy for heating, aquaculture, and production of electric power; 13. wells used for solution mining of conventional mines such as stopes leaching; 44 ------- 14. wells used to inject spent brine into the same formation from which it was withdrawn after extraction of halogens or their salts; 15. injection wells used in experimental technologies; 16. injection wells used for in situ recovery of lignite, coal, tar sands, and oil shale; 17. agricultural draining wells; 18. air scrubber waste disposal wells (except if injection is for enhanced recovery of oil and gas in California); and 19. water softener regeneration brine waste disposal wells (except if injection is for enhanced recovery of oil and gas in California). 45 ------- CLASSIFICATION OF INJECTION WELLS CLASS I Hazardous, Industrial Municipal I CLASS V I All Others I I CLASS II CLASS III CLASS IV Oil and Gas Mining Hazardous I I I I I I Surface Mineral Rich Zone Oil t3earing Zone Lowermost U5DW “Shallow” Groundwater II V I Confining Zone Coni irting Lone V V Injection Zone ------- 7.0 DEVELOPMENT GRANT PROGRAM 7.1 What Are the Acceptable Uses of Development Grant Funds ? The amount of effort it will take a Tribe to qualify for primacy will vary widely from Tribe to Tribe. For most Tribes the effort and financial costs will be significant. EPA provides both technical assistance and financial assistance once a Tribe (or state) decides to apply for primacy. The size of a development grant for PWSS is based on four elements: (1) population, (2) land area, (3) number of community systems, and (4) non-community systems. 2 The first step towards primacy was described in Section 5-- gaining “treatment- as-a-state” status. Once this occurs, a Tribe may apply for a development grant. Development grants are intended to help develop a Tribe’s regulatory program. Funds may be used to help a Tribe pay for consultants, legal advice, office supplies and other expendable items during the time the Tribe is preparing for primacy. From the time a Tribe first receives a development grant, funding may be granted for a total of not more than three years for PWSS and not more than four years for UIC. In some cases, preparing to apply for primacy may take longer than three or four years. In those cases, a Tribe might ask for funding each year for two or three years, work without funding for the next year, and then apply for one more year’s funding to complete the process. Typically, however, Regions will expect a Tribe to achieve primacy within three years for the PWSS program and four years for the UIC program. Development grants are made on a year-by-year basis. Funding for each year is determined, in part, by a review of progress made to date in accordance with the approved development schedule. 2 A community water system is defined as follows: 1. Has at least 15 service connections used by all-year residents, or 2. Services at least 25 all-year residents. A non-community water system is defined as follows: 1. Has at least 15 service connections used by travelers or intermittent users at least 60 days a year, or 2. Services a daily average of at least 25 people at least 60 days a year. 47 ------- As previously mentioned, development grant funds may be used for expenses directly related to developing and attaining a primacy program. Development funds may be used for: o hiring an attorney to review drinking water statutes or codes a Tribe develops in order to qualify for primacy o consultants’ fees to help set up a record keeping system o office expenses such as telephone charges for calls to get assistance from EPA, IHS, etc. o expendable office supplies (paper, copier supplies, postage) used in preparing for primacy o travel expenses to consult with EPA or other agencies concerning primacy o training costs to develop needed technical expertise They may not be used for such things as: o expansion of a PWS system o purchase of new equipment o salaries of operators o ongoing operating and maintenance expenses o funding a Tribal Utility Authority 7.2 How Do a Tribe Apply for a Development Grant ? In order to receive development grant funds, a state must make a written commitment to achieve primacy within two years. EPA will allow Indian Tribes up to three years to achieve primacy for the PWSS program and four years for the UIC program. 48 ------- The commitment to achieve primacy takes the form of a development plan. In its plan a Tribe must determine what it needs to do to meet the primacy requirements and then indicate how and when each step will be accomplished. After developing its plan, a Tribe should have a reasonably good understanding of what the cost of achieving primacy will be and, at that point, would apply for a development grant. If, after receiving funding, the Tribe fails to meet the objectives within the time frame set out in the development plan, EPA may refuse to continue the funding. It is important, therefore, that a Tribe give careful consideration to all that primacy requires and be realistic about estimating how long it will take to do things such as develop and adopt Tribal drinking water codes, set up user fee structures and enforcement procedures, and develop needed technical and administrative expertise. A development grant application should contain a reasonably complete description of what a Tribe hopes to accomplish during each of the years of the development period. Each application will be different because no two Tribes start out with the same set of circumstances. Each Tribe needs to study the primacy requirements, compare them with its present capabilities, and then prepare a plan to develop a primacy program. Remember, be realistic. Each year EPA will evaluate the Tribe’s progress in meeting its objectives and make a determination of whether to continue funding support for the next year. these evaluations are performance based and are both intensive and extensive, covering a broad variety of areas in considerable depth. The example below is a very brief outline of development plan goals. EPA reviews development grant applications on a case-by-case basis and, as with “treatment as a state” applications, allows some flexibility in how a Tribe presents its request. The presentation format is not as important as how well a Tribe shows that it understands the primacy requirements, has developed a plan to meet all the requirements, and is willing to make the commitment to do so. SAMPLE OUTLINE FOR A DEVELOPMENT PLAN I. Statement of Commitment Tribal applicants must commit to assuming primary enforcement responsibility within the designated three-year period for PWS and/or four-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 the Tnbes. 49 ------- II. Public Water System Supervision Program DeveloDment Grant Goals A. Suggested Year#l Goals - Signed Drinking Water Statute addressing at least the public water system superViSiOn 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 conflicts; - Sanitary survey protocols/procedures developed; - Data processing/record keeping procedures established. B. Suggested Year t2 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; - Variance and exemption policies defined; - Compliance tracking system developed; - Attorney General’s statement. C. Suggested Year #3 Goals - Evaluate previous year’s performance; - Demonstrate capability to administer the program effectively. 50 ------- Tj. Jpderground Injection Control Program Development Grant Goals A. Suggested Year #1 Goals - Signed Drinking Water Statute at.ldressing at least underground injection control; - Codified regulations (Tribal codes) for protection of underground sources of drinking water (TJSDWs) at least as stringent as federal regulations; - Inventory of UIC wells; - Develop regulations (Tribal codes) to ensure public participation; - Hire technical staff as needed; - Establish data handling/record keeping procedures. B. Suggested 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. C. Suggested Year #3 Goals - Evaluate previous year’s performance; - Complete program description; - Memorandum of Understanding (including referral of criminal matters as necessary); 51 ------- - Submit copies of all pertinent UIC statutes and regulations; - Gain experience running portions of the UIC program; - Update inventory. D. Suggested 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. As this outline of goals suggests, preparing for primacy involves more than just filling out forms. Three program issues which must be addressed in a Tribe’s development plan are explained in greater detail below. These issues are: 1. regulator/regulatee conflict, 2. laboratory analyses, and 3. criminal enforcement authority. Regulator/Regulatee Conflict A potential conflict of Interest exists for Tribes seeking PWSSIUIC primacy because of the common situation for a Tribe to own the public water systems and/or underground injection facilities which it would be required to regulate. This could result In a Tribe taking action against Itself. The analysis provided in the IJIC section below regarding inherent regulator/regulatee conflict is also applicable in the PWS program. There are, however, several suggested actions to minimize the conflict potential. In establishing an agency 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 facilities. Where this agency already exists in the same division/organization, the agency should be moved, or the Tribe should submit a description of the enforcement procedure to be followed when a potential conflict exists. 52 ------- In order to evaluate any potential conflict of interest created by the Tribe as both the regulator and owner of the public water systems, the Tribe should submit the following information. (a) An inventory which specifies the ownership of all public water systems and/or underground injection facilities to be regulated by the Tribe. (b) A copy of the Tribe’s proposed organizational structure for implementing the PWSS/UIC program. This organizational chartl description should identify the relationship between the organizational entity charged with implementing the PWSS/UIC program and the owners/operators of the public water system or underground injection facilities. Laboratory Analyses It is the responsibility of the owner/operator of the public water system to ensure that samples are analyzed by a certified laboratory. In some cases, the Tribe may be this responsible entity. In other cases, a Tribe may choose to take on this responsibility for the public water system operators (as is the case in some states). In all cases, the Tribe must demonstrate that it has access, through a formal agreement, or other arrangement, to a state or EPA certified laboratory to conduct all required analytical measurements, including special sampling associated with public health threats. Section 142. lO(b)(3)(iii) of the regulations states 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 (laboratory certification) requirement. This section provides guidance for the review of the information to be submitted under this requirement. The Tribe must submit an explanation of the type of sampling it intends to do. They 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. 53 ------- iminal Enforcement Authority Each Tribe’s development plan must describe how the Tribe will deal with criminal violations of its drinking water statutes. It will be necessary to draft a memorandum of agreement (MOA) (also known as a memorandum of understanding- MOU) for referring criminal violations to the EPA. The MOA should address the conditions and issues described below. The Tribe is responsible for taking timely and appropriate enforcement actions in instances of significant noncompliance (SNC) against persons in violation of program requirements, compliance schedules, technical requirements, and other PWSSIUIC program requirements. This includes violations detected by Tribal, state, or federal inspections. SNC (significant noncompliance) is defined as those systems with the types and durations of violations which pose the greatest threat to human health. 3 Such violations might include the following examples: 1. A system exceeds microbiological or turbidity MCL for four or more months Within 12 months. 2. A system fails to monitor or report microbiological, turbidity, or total trihalomethanes (THMs) results for 12 months. 3. A system violates the microbiological or turbidity MCL or fails to monitor or report these results for a combined total of 12 consecutive months. 4. A system exceeds the unreasonable risk to health level for any organic, inorganic or radiological contaminant. 5. A system fails to monitor for or report results of any regulated organic, inorganic, or radiological contaminant since the Federal regulations became effective. 6. A system violates any requirement of a bilateral compliance agreement/schedule. “Timely and appropriate” means that within 90 days of the time an instance of SNC is identified, the Primacy Agency should take one of the following actions: 1. Bring the owner and/or operator back into compliance through formal or informal enforcement action; 3 A new definition of SNC is planned for implementation in FY 91. Contact your EPA Regional Drinking Water Coordinator for current details. 54 ------- 2. Place the owner and/or operator on an enforceable compliance schedule to achieve future compliance; or 3. Initiate formal administrative enforcement action. Failure by the Tribe to initiate appropriate enforcement action against a substantive violation will be the basis for EPA’s determination that the Tribe has failed to take timely enforcement action. EPA will then issue a “Notice of Violation” to the PWS agency and notify the Tribe that this action has been taken. The 1986 Amendments to the Safe Drinking Water Act make federal enforcement in assigned programs mandatory where a Tribe fails to take appropriate enforcement action within 30 days after notice. In addition to the mandatory requirements of the SDWA Amendments of 1986, EPA will consider taking direct enforcement action in the following cases: 1. Primacy agency (Tribe or state) requests EPA action; 2. National precedent (legal or programmatic); 3. Violation of EPA order or consent decree; and 4. Criminal actions where Tribal criminal authority is absent, or the Tribe does not wish to assert such authority. The MOA should also describe the enforcement mechanisms the Tribe will use to restrain immediately and effectively any person engaging in an unauthorized activity or operation which is endangering or causing damage to public health or the environment, as defined in relation to this program of primacy. The Tribal agency administering the program must also have the means to sue in court to prohibit any threatened or continuing violation of any program requirement, and to sue in court to recover civil penalties. The Tribe should discuss in the MOA the anticipated uses of penalties and other sanctions to address PWS violations. Additionally, the approach used to calculate civil penalties should be defined. EPA expects a reasonable effort to calculate the economic benefit of noncompliance and to remove that benefit by penalty assessment. A reasonable effort implies that the Region and the Tribe work together on a case-by- case basis. The Tribe is responsible for ensuring that the Tribal Counsel, Tribal Attorney General (AG), or appropriate Tribal officer/staff are properly notified and consulted about planned enforcement actions at the Tribal or federal level. [ In this section of 55 ------- the MOA, procedures and protocols for notification and consultation between the delegated agency and the Tribal counsel or AG should be defmed.] For SNCs involving willful tampering with public water systems, criminal actions are appropriate. In the MOA, the Tribe should discuss its criminal authority (if any) over Tribal members. Where the Tribe lacks criminal authority the Tribe must refer criminal actions to the appropriate EPA Regional Office with all of the information pertinent to the case. Continuous coordination with EPA and submission of additional information, as it becomes available, is necessary. Specific procedures and protocols for criminal referrals should be described. Regional staff from the Regional Counsel and Water Management Division will be involved from the start in developing the necessary MOA and consequently, the review process will be continual. 56 ------- 7.3 What Information Should Be Included in an Application for a Development Grant ? The following outline was prepared from a development grant for a PWSS program submitted to EPA by Mr. Everett Iron Eyes and Mr. Peter Capossela of the Department of Water Resources, Standing Rock Sioux Tribe, Box #D, Fort Yates, North Dakota. The developmental grant application is copyrighted by the Tribe. The application and other important information was provided by the Tribe to help us prepare this HANDBOOK and to assist other Tribes in seeking primacy. Other Tribes can modify this outline to meet their needs. I. Introduction A. Drinking Water Quality Assessment Project B. Municipal, Rural, and Industhal Water Project C. Safe Drinking Water Act Program Development on the Standing Rock Indian Reservation II. Objectives A. Establish and Maintain an Inventory of Public Water Systems B. Adopt Tribal Drinking Water Standards That Are No Less Stringent Than National Primary Drinking Water Standards C. Establish a Tribal Environmental Protection Board and Develop Administrative Procedures for Enforcing Water Quality Standards and Regulations, With Adequate Due Process Safeguards D. Systen tiie the Testing and Analysis and Monitoring Procedures of the Board, With Appropriate Coordination With Other Agencies E. Develop and Implement Public Notification Procedures and Consider Public Comment in Program Decision Making F. Establish Design and Construction Standards for New or Substantially Modified Public Water Systems G. Establish Procedures for Variances 57 ------- H. Develop a Plan for the Provision of Safe Drinking Water During an Emergency I. Develop Comprehensive Record Keeping and Reporting Systems I. Establish Procedures for Enforcing Tribal Drinking Water Quality Regulations K. Quarterly Review and Annual Evaluation of Program Development L. Demonstrate Capability to Administer the Program Effectively ifi. Scope of Work The Tribe has developed this Scope of Work as the means to implement the objectives stated above. A. Establish and Maintain an Inventory of Public Water Systems 1. Establish information base 2. Laboratory facilities 3. Water quality monitoring 4. Analyze test results and rank public water systems B. Adopt Tribal Drinking Water Standards That Are No Less Stringent Than National Primary Drinking Water Standards 1. Interim standards and regulations 2. Final standards and regulations C. Establish Tribal Environmental Protection Board and Develop Administrative Procedures for Enforcing Drinking Water Quality Standards and Regulations 1. Enabling legislation 2. Conflicts of interest issues D. Systematize the Monitoring and Analysis Procedures of the Board 1. Bacteria, organic and inorganic compounds and radionuclides 2. Reporting by public water systems 3. Develop technical capability 4. Cooperative agreements 58 ------- E. Public Notification Procedures 1. Disthct Council, County Commission and City Council meetings 2. Public water system owners and operators F. Design and Construction Standards for New or Upgraded Public Water Systems G. Variances H. Emergencies I. Record Keeping and Reporting I. Establish Procedures for Enforcing Standards and Regulations K. Review and Evaluation L. Demonstrate Capability IV. Program Implementation V. Budget A. EPA Contribution B. Tribal Contribution VI. Work Plan A. Ycarl B. Year2 C. Year3 59 ------- 7.4 How Is the Level of Funding Determined and What are the Matching Fund Requirements ? Each year Congress budgets a certain amount of money to fund EPA programs. The EPA, in turn, sets aside 3% of its PWSS funds and up to 5% of its UIC funds each year for development and program grants specifically for Indian Tribes. In FY 89 the PWSS funds amounted to $1.194 million; in FY 90, $1.344 million; and in FY 91, 51.474 million. EPA awards PWSS grants to Tribes by proportioning available funds among eligible applicants. Grants for state programs are made on the basis of workload and consider such factors as land area, population, and number of community and noncommunity water systems. The basis of grant allocations for Tribal PWSS programs is not expected to differ from this scheme. Because of the limited amount of funds available in a given year, EPA may not have adequate funding to award all Tribes the total amount requested by each Tribe. As more and more Tribes compete for available funds, the amount allocated to each Tribe will get smaller and smaller. A survey of past awards to states revealed that states funded an average of 53% of the costs and EPA funded 47% of the costs. By regulation, a Tribe will generally be required to provide at least 25% of the costs; however, EPA may fund up to 90% of the development costs, with the Tribe contributing the remaining 10%. In cases where the Tribe has met the other grant eligibility requirements and demonstrates that it does not have adequate funds (including federal funds authorized by statute to be used for matching purposes), Tribal funds, or in-kind contributions to meet the 25% match, EPA may consider reducing the Tribal match to 10%. However, in no case will the federal share exceed 90%. A Tribe’s matching share can be made up to 100% with “in-kind” funds and can include some types of federal funds. Funding as outlined by PL86-121 (Indian Sanitation Facilities Act) is not allowable because these funds are construction money. Funds under PL93-638 (Indian Self-Determination Act) are dollars a Tribe receives from the IHS operating budget to implement environmental programs in place of IllS. EPA regional staff will review programs which were “638d ” to determine if they can appropriately be used as matching funds. IHS and BIA funding for improvements of water and wastewater utility systems by the Tribe’s water utility agency cannot be used for matching funds for a development grant for the Tribe’s drinking water or environmental protection enforcement agency (primacy agency). 60 ------- Types of in-kind Contributions can be such things as: Accounting costs Advertising Advisory councils Bonding Budgeting Building leases Payment for personal services Depreciation and use allowances Payroll and fringe benefits Travel Professional services Training and education Facilities such as office space, classrooms, warehouse, laboratories, clinics, and land Equipment such as office machines, teaching aids, computers, and production machinery Materials such as office, workshop and maintenance supplies Personal services furnished by professional and technical personnel and skilled and unskilled labor other than staff of the recipient Other contributions determined appropriate by EPA It is important for Tribes to realize that regardless of the required matching level. the actual percentage of program costs that may be incurred by a given Tribe in the course of adequately administering these programs could easily exceed the 25% matching requirements . States are no contributing 53% of their program costs (on the average; it’s higher in some EPA regions) while EPA contributed 47%. State contributions are expected to increase in the future as new and more stringent regulations come into effect. After the initial development grant, Indian Tribes would not be eligible to receive additional grants unless they show progress in developing their program. Indian Tribes who fail to obtain primary enforcement responsibility by the end of the three-year or four-year development period would not be eligible to receive additional grants until they achieve primacy. 61 ------- 7.5 How Will EPA Evaluate a Tribe’s Capability to Achieve Primacy ? EPA will evaluate an Indian Tribe’s capability to achieve primacy within the three- year or four-year limitation by reviewing the development plan the Tribe submits. In making this determination, the EPA Regional Administrator will consider such information as the current number of public water supply systems, current compliance by the public water supply systems, and whether the program personnel have or could develop the technical and administrative skills necessary to administer the program. No specific guidance has been provided concerning the length of EPA’s review period for development grants. In preparing a grant request, however, a Tribe will be working closely with their EPA Regional office. If the development plan includes all the activities required for primacy and contains a realistic timetable for achieving the Tribe’s• goals, the processing of a development grant application should not take an excessive amount of time. 62 ------- 8.0 CHECKLISTS 8.1. Tribal Water Utility Agency The purpose of this checklist is to help Tribes determine if their Water Utility Agency has the essential support, resources, and personnel with technical ability to comply with the SDWA. YES jQ UNCERTARL 1. AWaterUtilityBOardhasbeefl established. 2. The Board has a clearly defined structure, goals, and functions. 3. A set of utility operating by- laws are in place. 4. The Tribal Council has a defined role relative to the operation of the water utility program. 5. An operation and maintenance organization (0 & M group) exists with defined roles and responsibilities. 6. The Tribe currently complies with sampling, reporting and other Safe Drinking Water Act require- ments. 7. A written preventive maintenance program has been developed for pumps, hydrants, storage and distribution systems. 8. The 0 & M organization keeps main- tenance logs and maintains records of system maps, water usage, sampling and results. 63 ------- YES NQ UNCERTAI?L 9. An adequate inventory of spare parts and supplies is maintained and supported through annual budgets. 10. The Water Utility Board delivers routine verbal and written reports to the Tribal Council. 11. An annual report is prepared and discussed with the Tribal Council. 12. The utility organization is financially self-sufficient. 13. An annual operating budget is developed and approve4 by the Tribal Council. 14. The budget reflects all direct operating costs and indirect administrative costs. 15. The budget includes a line item for the purchase of spare parts and supplies. 16. The budget includes consideration for developing a depreciation reserve. 17. The budget includes allowance for maintaining an ‘emergency” reserve of between $1000 - $5000. 18. A self-sufficient user rate system has been developed and implemented. 19. An annual review of user rates is conducted. 64 ------- YES jQ UNCERTAIN 20. A consistent fee collection policy has been developed and enforced. 21. Users review and sign a customer agreement defining services, fees and utility policies. 22. Board bylaws include a court resolution policy for users who violate fiscal policies. 23. Utility staff are selected on the basis of interest, skills and reliability. 24. Utility staff are encouraged and supported in their efforts to pursue regular continuing education and advanced training opportunities. 25. Utility staff are supported by the Tribe through the provision of adequate tools, fair salary compensation and employee benefits 26. The utility organization maintains a public relations program that might include such elements as posted informative articles and/or public tours of water facilities. 27. The Tribe understands the role of the IRS with regard to Tribal water utility system. 65 ------- 8.2 Tribal Enforcement Agency The purpose of this checklist is to help Tribes determine if their Enforcement Agency has the support, resources, personnel and technical ability to enforce compliance with the SDWA. There must be no conflicts of interest between the Tribal water utility and the Tribal enforcement/regulatory agency. YES 1Q.. UNCERTAIN 1. An independent agency is in place to oversee the enforcement of Safe Drinking Water Act requirements and Water Board policies. 2. The Tribal Council supports the efforts of the regulatory group through funding and support of the judicial process. 3. The operating budget is formulated and approved by the Tribal Council. - 4. The regulatory agency members maintain oversight independently from the Water Utility Board and Tribal Council. 5. A set of codified policies and regulations have been developed and are enforced. 6. Codified regulations are enforced through a system of violation notices, fines and civil or criminal penalties. 7. Regulatory agency members are selected based on their interest, qualifications, understanding and objectivity. 66 ------- 8.3 “ Treatment as a State” Application The purpose of this checklist is to help Tribes determine if they are ready to apply for “Treatment as a State” under the Safe Drinking Water Act. Tribes can also use this checklist to be sure all items are covered when they submit their application for “Treatment as a State” to EPA. ACHIEVEMENT YES N.Q DATE. IF NO 1. Federal recognition 2. Governing body carrying out substantial duties and powers a. Current governmental functions (policy setting, eminent domain, health, education, children, welfare, safety) b. Currently effective Tribal laws c. Tribe’s organizational structure (I) Executive (2) Legislative (3) Judicial 3. Tribal jurisdiction a. Governmental duties and powers exercised b. Map showing boundaries and water systems and/or injection wells 67 ------- c. Signed statement from Tribal Attorney General that duties and powers exercised are within the authority of Tribe 4. Tribal capability a. Previous experience managing public health and other programs b. Existing programs administered by Tribe c. Accounting and procurement system d. Existing legal and judicial entities e. Independent agency to assume primary enforcement responsibility f. Technical and administrative expertise of staff g. No conflict of interest between Tribal Water Utility and Tribal Enforcement Agency 68 ACHIEVEMENT YES jQ DATE. IF NO ------- 8.4 Development Grant Application (to meet Primacy Requirements The purpose of this checklist is to help Tribes evaluate the requirements of a development grant application, determine what needs to be done to prepare a development grant, and make sure everything they would like covered is in their development grant. Development grants are used by Tribes to develop their regulatory/enforcement programs so they can qualify for primacy of the public water supply supervision (PWSS) programs and/or underground injection control (UIC) programs. PUBLIC WATER SUPPLY SUPERVISION PROGRAM p pU flU YES NQ DATE. IF NO 1. Should have “Treatment as a State” before applying SUGGESTED DEVELOPMENT GRANT GOALS (See Section 6 Primacy to prepare your own list of goals.) 2. Year#lGoals a. Drinking water statute addressing public water system supervision program b. Codified regulations at least as stringent as EPA’s c. Regulations developed to ensure public participation d. Public notification procedures developed e. Hire technical staff as needed f. Resolve any regulator/regulatee conificts 69 ------- g. Sanitary survey protocols/ procedures developed h. Data processing/record keeping procedures established 3. Year #2 Goals a. Evaluate previous year’s performance b. Memorandum of Understanding (MOA, including referral of criminal matters as necessary) c. Analytical requirements d. Quality assurance plan developed and approved e. Variance and exemption policies defined f. Compliance tracking system developed g. Attorney General statement 4. Year #3 Goals a. Evaluate previous year’s performance b. Demonstrate capability to administer the program effectively 70 TASKS YES jQ DATE. IF NO ------- TASKS YES I 1Q DATE. IF NO 5. Budget a. Tribal contribution — — b. EPA contribution — — _______ 71 ------- UNDERGROUND INJECTION CONTROL PROGRAM TASKS YES Q DATE. IF NO 1. Should have “Treatment as a State” before applying. SUGGESTED DEVELOPMENT GRANT GOALS (See Section 6 Primacy to prepare your own list of goals). 2. Year#lGoals a. Drinking water statute addressing underground injection control b. Codified regulations at least as stringent as EPA’s c. Inventory of UIC wells d. Regulations developed to ensure public participation e. Hire technical staff as needed f. Establish data handling/record keeping procedures 3. Year #2 Goals a. Evaluate previous year’s performance b. Complete adoption of necessary statutes and regulatory requirements c. Compliance tracking procedures 72 ------- d. Develop compliance enforcement strategy e. Train inspectors as needed f. Draft program description g. Update inventory 4. Year #3 Goals a. Evaluate previous year’s performance b. Complete program description c. Memorandum of Understanding (MOA, including referral of criminal matters as necessary) d. Submit copies of all pertinent UIC statutes and regulations e. Gain experience running portions of UIIC program f. Update inventory 5. Year #4 Goals a. Evaluate previous year’s performance b. Submit formal request for program approval 73 TASKS YES I jQ DATE. IF NO ------- c. Tribe continues to gain experience running portion of program d. Update inventory e. Demonstrate capability to administer program effectively 6. Budget a. Tribal contribution b. EPA contribution 74 TASKS YES Q DATE. IF NO ------- 8.5 Primacy Application The purpose of this checklist is to help Tribes determine if they have met the requirements for primacy and to be sure that all important items are covered in their application for primacy. PUBLIC WATER SUPPLY SUPERVISION PROGRAM TASKS YES Q DATE. IF NO 1. Adopted drinking water regulations at least as stringent as SDWA primary drinking water regulations 2. Adopt and implement procedures for enforcement of drinking water regulations a. Maintain inventory of public water systems b. Program for conducting sanitary surveys c. Laboratory analyses of public drinking water supplies d. Review of plans and specifi- cations of new or modified public water system facilities 75 ------- e. Tribe has authority to compel compliance with pnmaly drinking water regulations (enforcement authority and enforcement procedures) (1) Restrain persons endangering or damaging public health as it relates to drinking water (2) Means to sue in court to stop any threatened or continued violation of PWSS program requirements (3) Means to sue in court to recover penalties for violations 3. Establish and maintain record keeping procedures and submit reports as required by EPA 4. Provisions for granting of variances and exemptions 5. Ability to provide safe drinking water during emergencies 6. Procedures for keeping Tribal drinking water regulations up to date with changes in EPA’s regulations 76 TASKS YES jQ DATE. IF NO ------- 1.Th DERGROUND INJECTION CONTROL PROGRAM TASKS YL jQ DATE. IF NO 1. Prohibition of unauthorized injection 2. Prohibition of endangering drinking water sources 3. Prohibition of movement of fluid into a USDW (underground source of drinking water) 4. Authority to issue permits or rules 5. Authority to condition authorized injection activities 6. Authority to impose compliance evaluation requirements 7. Authority to enforce requirements 8. Authority for public participation in permit processing 9. Authority to apply technical criteria and standards for the con ol of underground injection 10. Clacciflcation of injection wells 11. Elimination of class iv wells (Class 1V wells are banned) 12. Authority to identify aquifers that are underground sources of drinking water (USDW) and to exempt certain aquifers 77 ------- TASKS S N Q DATE. IF NO 13. Authority over federal agencies and persons operating on federally owned or leased property 14. State authority over Indian lands (not applicable) 15. Authority to revise Tribal under- ground injection control programs 16. Authority to make and keep records and reports on program activities 17. Authority to make available to EPA information obtained or used in administration of program 18. Certification of status 19. Signature of Attorney General or independent legal counsel 9.0 REFERENCES 1. Safe Drixiking Water Act (SDWA) 2. Federal Register and Code of Federal Regulations (40 CFR 141 through 148). 3. Overview of the Safe Drinking Water Act Amendments, Camp Dresser & McKee Inc. 4. US Environmental Protection Agency, Office of Drinking Water documents: a. Guidance Document for the Surface Water Treatment Rule b. Guidance for Public Notification, and c. Lead Contamination Control Act 78 ------- 10.0 APPENDICES Appendix 1: Robert I. Blanco Memorandum Appendix 2: EPA Regional Contacts Appendix 3: Regulated Contaminants (Region IX) Appendix 4: UIC Attorney General’s Statement Appendix 5: Typical or Suggested Tribal Statements in Applications 79 ------- APPENDIX 1: ROBERT J. BLANCO MEMORANDUM 81 ------- UNITED ENVIRCNME . TAL PRCiTECT OM AGENCY HEMOR DLfl1 APR 25 1989 SUB ECT: FR OH: final Guidance on Implementing the Indian Primacy Rule for the PWSS and UIC Programs Robert J. Blanco, Director State Programs Division TO: Drinking Water Branch Chiefs Regions I-Il and IV — X This iemorandum transmits to you our final guidance document en Implementing the Indian Primacy Regulations for the PWSS and VIC 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 conments 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 .11 of you for your assistance in this project and I hope this documant will be useful to you and your staff. Should you have any questions please contact Betsy Devlin (FT$ 382-2303) for the PWSS program and Don Olson (TX ’S 382—5558) r the UIC program. t.chment iiA#. ’. 132.$ (1240) QFFIC *L Fill COP i • )y J .,. 1 QJ 7 ’J4 COwCUUIN $ ..... r. . .... •..a........n... Al,t4 1 11 &‘J t’t . ......fl.flI ..... .lH ....Ia ••S SS —, •......._S_. —. ------- IAB. OF c tT. PACE JJ li 2 I. Introduction 1 II. Treatment as a State 3 A. R.çuired Infcr ation 3 B. EPA Review of Treatment as a State Applications 9 C. Ti-c Fra—e for Processing Treatment as a State Appications 11 Ill. Deveop ’er t Grants 11 A. required Infor at ion 11 3. EPA Review 15 IV. Pri acy 16 A. P.equired I for ation 16 I. E!A P.cview 16. Attach-ents A. Treat er t as a State Checklist 3. Treat ent as a State Decision Process Flowchart C. Su;cested Deveiop’ ent Grant Goals for the PWSS and VIC Progra s ------- flDIAIJ PRIHACY GUIDAHCE April 1989 I. INTRODUCTION Section 1451 of the Safe Drinking Water Act (SDWA) authorizes the Ad iniscrator to treat Indian Tribes as Stat.,.. Section 1451 states: wSuch treatment shall be authorized only ig: (a) the Indian Tribe is recognized by the Secretary of the Inerior and has a governing body carrying out substantial governmental duties and powers: (b) the functions to be exercised by the Indian Tribe are wj:kjn the area of the Tribal qovernzent’s jurisdiction: and Ic) the Indian Tribe is reasonably expected to be capable. it. the Adj inistrator’s judgement. of carrying out the funct ens to be exercised in a. manner consistent with the terrns and purposes of this title and all applicable reçu a:ions N Or. Septe—ber 26. 1988; EPA published the final regulations for add;essing primary enforcement responsibility (primacy) for Indian Tribes for the Public Water System Supervision (PWSS) and th 1.’nderçround Injection Control (UIC) programs 153 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 treat ient as a State; the second, to apply for and receive Federal fi nding to develop proqra capability: and finally, to apply for and be grented primary enforcea.ent sponsibility using the sane procedures and meeting the sarn. requirements as States must meet. The regulations also expand on the statutory criteria id.,:ified above by specifying various factors the agency will evaluate in determining a given Tribe’s eligibility for treatnent as a Stat.. Readers of this guidance are directed to the PreaTtble of the tira. rule (53 37396) for a thorough discussion of the treatnent as a State requirements. The regulations may be found at 10 Tj 112.76 for the PUSS program and 40çff 145.56 for the %JIC program. It is i!r;portant for all to be aware that Tzib•s.may apply for treatment as a State under either the Safe Drinkir.; Water Act or the Clean iater Act and that orce so designated. a Trib. need ------- —2— only submit thfornation unique to the specific progran (e.g. PWSS or UIC) for which it is applying (rather that resubmitting all previous treatment as a State infor ation). It is therefore critical that contacts be kept among all water programs. ? !ter being designated eligible to be treated as a State. a Tribe may apply for a devslop”ent 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 par: of the treat er t as a State application. If the Tribe has applied for treatment as a State for the PWSS or the UIC program, the development çrar : application may reference the treatrtcr.t 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 Regiois ay modify these suggested goals to fit th. specific SjtUltiCfl. The third and final application is for primacy. Once a Tribe has co!;leted the develop”’ent phase and has demonstrated to the satisfactton of the Regional Administrator that it can effectively adinister the progra .. the Tribe submits an application fer primae7. The requ re ents and procedures for applying for ;riacy ar. specifically defined in 40 CFR Sections 142.10 throu; 142.13 for the PWSS piogram and in 40 CYR Part 145 for the UXC pro;ra . Tribes tust rteet these requirements in order to be granted ;ri acy. ( Iote: the PWSS primacy regulations are undergoing Indian Tribes app.ying for primacy will be subject to the new regulations which are expected to be pro ulgated 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 .COflO!TjC aspects of assw ing a PWSS or UIC primacy program. The grant regulations stat. that a Tribe must -atch federal funding at 2S unless the TrLbe can demonstrate that it does not have adequate funds. inc1ud ng federal funds authorized by statute. to be used for matching purposes. In that case, the Tribal match could be lowered tc l0 . The key point which must be communicated is that the level of funding availabl, for a givi n fiscal year is.fixid. ------- —3- md consequently. an applicant ay not receive the entire level of funding requested. Those funds required, but not provided by thefederal gOvernnent will have to come from Tribal sources. An analysis of State PWSS programs indicated that although the States are requ.red to match ederal funds at 25%, in reality they are matching 50 to 60 % because the Agency iS unable to provide4ny additional resources. It s quite likely that Tribes assu ing p;imacy will face similar situations. In addition, in these early discussions, the limitutions of the primacy programs must be pointed out. For example, the SDWA does not provide funds for construction and/or maintenance of drinking water iacil ties nor can facilities be upgraded using SDWA funds. It is important that these be understood at the beginning of the process. This g.idanc. docu ent s meant to serve two primary purposes. First, it is designed to familiarize all staff with the indian prim,.cy rule and its r.quire ents. Secondly, it should give Regicne Staff the asa±,tance t ey need to discuss the rule with Tribes and to evaluate Tribal sub issions. Finally, please note that this guidance does not previde a d.tail.d discussion of the requirenents f r pris iey. These are handled in other materials and staff should consult these for additional details. ii. TREAT!1E:1 AS A_STATE A. Tribes ust submit. . infor-ation which demonstrates the follcwing: (1) The Secretary of the Interior publishes in the F 4e_r j•R egistçj a list of Federally recogn±:ed Tr b.s. The applicant may submit a copy of this list to establish the fact that it has Federal recognition. Ir the event that the Tribe has been recently r.eognized M but does met yet appear en the list in thi the Tribe should provide copies of the appropriate paperwork it has received from the Secretary of the Interior. If a Tr b. has other documentation which shows F.d.ral ReeognLtion. it may submit this in lieu of a copyof the Federal 2js1j notice. ------- —4- (2) “Gover inp_body_car yina out _ j % an ial duties and . 22!!LL.” The regulations requ re that a Tribe subrit a narrative statenent which shows that a Tribe is perfori ing these dutLes in providing for th. health, safety and welfare of its TrLbal as—bars. Examples of the duties includ.. bat are not limited to. the power to tax, the power of eminent domain, and the power to adopt civil regulations. The regulations also xequir• docw ent&t Ofl to support the information provided ira the narrative. ftather than have Tribes provide what could be a great deal of extraneous information, Pagions should have applicants focus the material as appropriate. For example, seine Tribal constitutions are very lengthy and incorporate all Tribal codes. It would be very time consuming for the Tribe to rnake copies of t is material and also for egional staff to review it. The Tribe could simply provide a copy of the ratification page. a table of content., and the appropriate codes. $ost Indian Tribai qovern ents perform •s1e t±el qoverui eata1 functions traditicnaly p.rfor,ted by sovereiçn govern:ents; however, the degree to which these functions are developed arid exercised can vary wtdely a. ong the Tribes. Consequently, the Region :ust evaluate each application on a case-by—case basis to determine if the Tribe exercises the necessary dutiec and pcvers to promote the health. safety. and welfare of the residents. Th. narrative s;ate enrs requtred by the regulations - H-2--76 lb tor’tITUPWSS - progra -an -t45-54-4-b)--4e the UIC---- include. a: a inimurn. the folowing: (a) An identification of the sources of the Trtbal government’s authority to carry out the go-:ern .ntal functions currently being performed (e.g.. Tribal constitution). (b) £ description of the organizational structure of the Tribe. This must include a description of th. powers exercised by each governmental entity, f or .xanple. police powers and texation. It must also include a description of bow governmental members are elected or appointed and the length of th. terms •er- ed. Ic) A description of the programs that the Tribe has instituted to promote the health, safety, and welfare of it. ------- -5- Tribal members. This iust include a description of the responsible Tribal entities for enforcing the programs and the enforcement mechanist. (3) aI! _ wjthjn the Tribal governme’ jj sdiction”. In order to assume responsibility for en environmental regulatory progr*w within the exterior boundaries of a reservation, the Tribe must have regulatory authority ov. the geographic area in question. A Tribe’s authority over the area may appear clouded by the existence of fee lands, federal lands, and non lndian or federally owned water systems within the reservation boundaries. (The., complications, however. should not significantly affect the Tribe’s application for treatment as a State.) The Tribe must demonstrat. its legal authority over the area in question. T) e Tribal Attorney General, or an equivalent officer, ust sub-it a statement cer. tifying that the Tribe possesses sufficient authority to regulate and enforce the PWSS or VIC progra? ±n th. appropriate area. This statement. must be supported by attaching copies (or portions thereof) of appropriate treaties. Tribal constitution,, codes. er rescl tions documenting this authority. Where possible. spe ific language maintaining the assertion should be highlig ted or excerpted so as to provide the s ronges: an most logical arguments for Tr a authority. In addition to the egai doelre?tation, the Tribe tust submit a legal description of th. area over which its asserts Tribal authority and a :ap 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 s thority. Map scales are left to the ap;licant’s discretion, however, they should clearly delineate the reservation boundary and public water supply facilities and/or underground injection wells w) ich they consider tc be within their legal authority. Finally, the Tribe must have urisdiction over the persons (i.e., the owners/operators of the public water systems and/er injection walls). This is dealt with in the section on Tribal court systems. ------- —6 - (4) çj.sonablr_exDect!A.ta_be_capjble’. The regulatory. language requires Tribes to subm;t a narrative statenent that addresses the six criteria related to capability identified Sn 40 çg 142.76(d) for the PWSS program and in 40 çfl 145.56(d),for the UIC program. Eac pf the six criteria is listed in this section along with an explanation of the information which must be provided. (a) Previous management p !jjence 1142.76(4 1( 1) and l45.56(di (1)3. The Tribe ’s managerial skills will be evaluated on the basis of their experience in administering contracts and grants awarded under such authorities as the Indian Self—Determtnation Act, the Indian Mineral Development Act, or the Indian Sanitation Tac lity Construction Activity Act. The narrative stould state each of the contracts and/or grants that the Trtbe administera or has administered, and provide a copy cf each. The Tribe should also provide a copy of any evaluattons by the awarding Agencies. EPA will consider such factors as the variety and length of the managerial experiences a d’wt.l consider the evaluations of Tribal perfor ance in administering programs performed by the awardSng Ager.cies (bi xjflin envi;.p.fl .qn t a 1 .2L.2 iicJ ps b3;Q9Z!Mj.. ad tinistered by the tribal rflated tribal 1afl JJg lJ;jpx , . aAd_ppIicj,i. l42. 6Id)(2) end 145.fl(4fl2)]. The Tribe should describe each of the programs specified above and submit the appropriate documentation specifying the ainhority for implementing the program. The description should include the responsible Tribal entity for administering the prog:an. EPA will consider such factors as nunbeç of programs the Tribe implements and theLr record of progress in eti arcing the provisions of each progra ?. II ! this inforration has been provided in the discussion of “governing bodycarrying out substantiel duties and powers” then thi material may be referenced and not repeated here) Ic) çgountj gand PxpcurengflL.pycst . ( 142.76(dH3) and l45.56(d)(3)J. The Tribe must provide a description of its accounting and procurement systm . En will review the Tribe’s systatto insure that it meets established federal guidelines (e.g. 25 C I X 271.46). ------- —7- (d) i js_which exercise the e:cec tive. lecislative, and judicial functions of T ibalgov iç . [ 142.76(d}(4) and l45.56(d)(4)3 The submission required under the “substantial governmental duties and powers” is likely to provide the necessary interaction as t* the exec tive 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 in that section. Information on Tribal judicial functions is discussed below. Pleasa note that this information ray also be •ub’ itted under the “substantial governmental duties” section or with jurisdiction. It it has been submitted there, it may be rstarenced and not repeated. Tribal court systems may vary in ?akC-up fror non—Indian courts. Ir 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 hew a non—Indian receives “due process” in a Tribal court. Both of these issues are cEntral o determining whether a Tribe satisfies the criteria for treatment a. a Stat.. However. EPA does n t intend to prescribe general criteria for what it cc siders “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 Tribsi ccurts ii at least to some extent. Tribally and cultura.ly dependent. This guidanc, is therefore confined to the types of information that must be submitted to deterriine a Tribe’s eligibility to be treated as a State. At a minimum, a Tribe must sub it a narrative state1 ent describing the following aspects of its ji dicial syste : (a) Q yj : A general overview of the judicial system and th. sourc. of authority (e.g.. Tribal constitution). (b) Lover Include information en the court structure and court rules. If two or more Tribes seek to. s ere program responsibilities, the relationship between the respective Tribal courts must be specified. (c) A n.llste Court . Information similar to that prov±ded for th. lower court system is necessary for the Agency’s understanding of th. appellate court. A ------- —8— description of the court structure end 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. (di n i. y_Svste . 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. (e) ge Selection . The process used for selecting court judges (including minimum qualifications I should be specified. If judges are shared through a ‘circuit ride. system, details of that system and the background of court officials should be provided. In addition, the legal process, appeals procedures. and any other legal re’edies available to Ind ams and r.on—Indians should be specified. This information is necessary to evaluate the legal rights of non—Indians in the Tribal court system. (e) E ci a tina or Dr2ppsLda. j).cy of th!.indib! _ !) jc)L !. .U. 1!! L.Pxi!arv_enforce iponsibi1it (l4 .76(d) (5) and 145.56(d)(5)]. The Tribe will be required to describe the Agency of the Tribe which will assume pri!tary enforcement responsibility. Tb. Trib, will be required to sub it supporting documentation which establishes the Agency and provides a description of th. authorities that the Aqency is given. An organization chart which shows the relationship of this Agency to other Tribal Agencies will be required. ?h s Agency must have the authority to imple ’ent 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 in 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.) - If) 7 chniea1 _ and administrative ca sbilities of the staff to administ .L..!nd manage a public water s . em su erViSi.2.TL and/or an underground njection (112.76(d) (6) and 145.56(d)(6)J. The Tribe must provide a description of the technical and adn inistrative capabil tie 5 ------- -.9- of the staff that will fill the positions in the proposed Agency Position descriptions will be acceptable for describing th. expected capabilities. At a ifli! U! , the Tribe should employ individuals knowledgeable in the areas of public health and environmental enginier ng and/or science. The Indisn Health Service ( I l (S) presently provides varying levels of assistance to Tribes. Many of the areas in which Il lS provides this assistance are areas a Tribe would have to take over if it is to be granted prii acy. For .xa iple. IllS currently provides plan and specification review for Tribe, and conducts sanitary surveys at Tribal facilities. Regional Offices should recognize these IKS/Tribal agreements: however, these sgree’eents vil need to clearly define tie responsibilities of IllS aLd the 7:be. The Tribe should comr it to assu e full responsibility for these functions. B. s_aS pflç qns.. EPA staff will review and evaluate Tribal sub issions based on the regulations and this guidance. If a Tribe’s application is found to be lacking sone needed materials, it should be returfled for a end ent by the Tribe. A checklist of requirec e.e e ts is provided in Attachment A to assist Regional stiff in. their review. Cl) Regional staff should c tai a d keep on file th. most recent Department of the Interior Bur eu of Indian Affairs (BIA) Federal Register flotification of Federally recognized Tribes. In the event a Tribe has been forrnally recognized, but has not been included on the most recent hA Federal Register list, Regiona. staff should review the relevant correspondence that the Tribe has received from Ilk. Staff may also contact appropriate IRS and Ilk offices for confirmation of a Tribe’s status. (2) “ o xj?.jpa body carryino out .ubstan ja 4ytjj and Tb. Region should insur. that the narrative statement and supporting documentation show that the Tribe has an organiz.d governmental body which •x.rcii.s legislative, .x.cutive, and judicial powers. Tb. r.cerds should show an established record of orderly government trensitions and also that the government exercises and has ------- —10’- exercised substantial governmental duties and powers in implementing programs to promote the health, safety, and welfare of its residents. (3) 0 Tunctions to be exercised •.. are within the Tr aL povernmeflt’ ufis4jetion . Review of the material on jurisdiction should be concurred on by the Office of 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 jurisdict on may arise in checkerboard areas where States feel they have risdiction over non—Indian communities that have been incorporated under State statute within he exterior boundaries of the reservation. Regional Offices should facilitate State/Tribal meeting to resolve these situations as soon as possible. Much of the information provided in ite *2 viii be applicable her.. The Tribo.is required to submits legal descrip io and nap showing the geographic area over which it clai s jurisdiction and also the location of th. water syst. s 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 Trib, or an attorney representing the Tribe is required to submit a staterne t. that the govern aental 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) ..!soD.a . .L.jxpected to be csoable . Regional staff should reae .ber that the decision to treat a Tribe as a State is made very early in the process of developing Tribal progrs s. The standard for the capability determin.tion is whether the Tribe is reasensble expected to be capable . of administering the progr.i . ------- —ii— C. Ti e Treatrentas a State Within thirty (30) days of receipt of a Tribe’s co ’pleted 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 gevernrer tal entity so notified by the Administrator shall have 30 days to comment upon the Tribe’s assertion of jurisdiction. Comments by governmental entities are limited to the Tribe’s assertion of jurisdictior (40 EB 142.7$ and 145.58). It is suggested that the Rágional Offices contact the State primacy agent and any Federal governmental entities such as the Ilatienal Park Service, Department of Defense, and the Depart!’e Of Energy as appropriate. The State primacy agency may wish to contact any non—Ind an communities that may be incorporated under State statute and located with the exterior boundarie, of the applicant’s reservation. Regional staff should request review by ‘the Office of Regiez al Counsel and by other water program staff. (as treatment as a State determnations made for one water proqr; affect other water prograrts). The Regional Indian Affairs Coordinator zay be involved as appropriate. If no competing claim of jurisdiction is received, the Regional Office should complete processing the application wi . rI thirty days. In the event there is a competing claim of jurisdiction, the regulations require the Adrinistrator to consult with the Secretary of the Interior (or his designee) and to consider any other co ’ ments that may have been received prior : making the determination as to whether the applicant meets the treatment as & State criteria. The Region should attempt to resolve such situations as expeditiously as possible. III. DEVELOPMENT GRM A. eauired I 9X! jj 9_fI Once a Tribe has been determined to be eligible to be treated as a State, it may apply for federal funding to develop it. 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-k nd contributions to meet this ------- —12— requirement. In that case. t e Tribe may be allowed to match only io . . ‘egion’s decision to allow only a 10% match should be made very carefully as financial capability on the part of a Tribe is extremely impprtant if they are to assume primacy. As stated earlier, Tribes can us. certain Federal funds and/or “j kjnd ” contributions to meet the match requirements. In addition tO the Tribalspecific needs, th. following issues saist be addressed by the Tribe in its grant application. (1) litor lsteecenflictI must be resolved. In order to evaluate any potential conflict of interest created by the Tribe as both the regulator and the reguistee. the Tribe must submit an inventory of .11 public water systems and/or underground injection veils 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 rust also identify the existing or proposed Tribal organization that will i implementing the primacy program. The relationship between the primacy organization and the organization that owns/operates the public water system(s) and/or th. 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 3nalLses assoc at.d vith the PWSS Procra . States seeking to obtain PWSS primacy ar. required to establish and maintain a Stat. prograt for the certifiCatiOI of laboratories conducting analytical measurements of drinking water contaminaflts. The regulations at l 2.l0(b)(3Hii) state that: “Upon a showing by an Indian Tribe of an intergovernmental or ether agreement to have all analytical tests perf rmed by a certified laboratory. the Administrator may waive this requirement.” It is the responsibility of the ownet/operatory of the public water system to insure that samples are analyzed by a certified laboratory. In some cases, the Tribe may by the owner/operator of the system. mother cases, the Tribe may choose to take on the responsibility of sample analysis for the public water system as is the case in sans 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. ------- —13- Therefore, as a part of a development program, the Tr be must submit n explanation of the type of sampling t intends to do. The Tribe must also submit S copy of a contract with a certified laboratory which specifies the type o 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) ç;iminal enfo eement authozj (!flC program). Tribes are net required to have criminal enforcement capability o qualify for treatment as a State (SDWA Section l451(bH2 3. This is no a major concern in the PWSS program as the on2 cr inal violation is tampering with public water systems (See SDWA Section 1432). The UIC program, however, has authority under SDVA Section 1423 to bring criminal •ctio s 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 •nforce ent autherity the Administra r will assume primary enforcement responsibility for crimina. violations. Further. 145.13 requires that the Memorandu of Agreement (a requirement for primary enforcement responsibility described in 145.25) spell out provisions fc 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 cc iplicated. Trib s have criminal authority over Tri*al members but their criminal authority ever Indians who are not members of their tribe is net always clear. Tribal criminal authority over non-Indians is precluded by the Supreme Court’s decision in 1978 in the Q jp nt v . case. Therefore the Regions must be sufficiently flexible on this issue to aecomodate different procedures for criminalsetions against Tribal members. non-Tribal Indiana. and non-Indiaa . (4) rçemeri p tjvjj j.% (both PVSS 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. ------- —14— The copliance/enforcement strategy should also discuss the aniticpated use of penalties and ether sanctions to address violations, and the approach used to calculate civil penaties should be defined. (Note: EPA expects a reasonable effort to calculate the economic benefit of noncompliance and to remov, that benefit by assessing a penalty.) The complianc, strategy should be Consistent with EPA’S PUSS and UIC Compliance Strategies (4/1/87) and other EPA enforcement policiss. EPA will review the documents to insure this. Regional staff should consult with their PUSS or UIC Enforcement Coordinators to insure consistency in enforcement policies and approaches. The Tribe must also have (or develop) the mechanisms to restrain iirmediately and effectively any person engaging in any u authoriz.d activity or operation which is endangering or ca.sing damage to public health or the environment (as related to the PUSS or UXC program requirements). The Tribal agency administering the program suit also have the eans to su. in courts of competent’ uri.djction to prohibit an ’ ;hriatened or continuing violation of any progra recu re ents and to assess or recover civil penalties as raqu.red by 142.10 for the PUSS program ano 145.13 for the l 1 flC program. Tb. eomplience/enforce ent strategy should explain these mechanisms also. The Tribe is responsible for ensuring ttat the Tribal counsel, Tribal Attorney—General, or appropriate Tribal off iCers/staff are properly notified and consulted about pla r..d enforcement actions at the Tribal cr Federal level. The co p1iance strategy (or Memorandum of Agrelment) should lay out this process. - rederal Facilities will be treated in the same manner as non—Federal facilities. The Rsgienal 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, cri inal actions may be appropriate in certain circumstances. In the PUSS 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. SDVA Section 1423 allows i or the filing of criminal charges for willful violations of any requirement of an applicable UIC program. In both programs, deliberately aking false statements to the ------- —15— federal government is & criminal offense. In the compliance strategy. enforcement agreement. or Hsmora duin of Agreement IUIC Program), the Tribe should set forth its 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 th. case to the appropirate 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 eases should be developed. As noted earlier, these procedures must be in the I e orandum of Agreement for the IC program: for the PWSS program, they can be in any document. 3. EJ Revie . P.egional Staff should conduct a careful review of all —ateria s submitted with a development grant application. In acditic . previous years’ performance in meeting commitments should be carefully considered before another years funding is awarded. The following guidance ii provided to help the Regions in their revi cv. (1) jIulLc2t1 eo UlI__e_ç2flflictj . In the event a Tribal appiceuon does not adequately identify a resolution of a reg 1ator/regulatee conflict. Regional staff may suggest the fol.owing possible actions to minimize potenttal conflicts. If the Trib, needs to establish an agency or department to ii plemsnt the program, the Tribe should not plac, this agency within th. same division/organization as any Tribal agency ruponsibl. for operating public water systems or underground 1n .ction wells. Where a responsible agency already exists in the same division/organization, the Tribe should c.r.sider moving it. or the Tribe should submit a description of the enforcement procedur. to be followed when a potential or actual conflict exiáts. (2) Laboratory Analyses . Regional Staff should obtain a copy of th. contract or agreement ensuring access to a State or EPA certified laboratory or laboratories. ------- —16— (3) Cri in_tLEnforcenenA. Regional staff from both the Office of Regional Counsel and the Water Division will be involve i iron the beginning in developing the necessary lierorandum of Agreement; hence the review process will be continual. (11 Cs p1ianc.tJflLts9 ss. Regional staff wilt be involved in the developr.ent of these over the course of the grant and so review will be continual. In addition to the specific issues, the checklists in Attachnent C provide models as to development grant goals and ti2lefrares. Regional staff may modify these as appropriate to specific situations: however, what is important is that all the elrents of a princy program be developed by the end of the develop ient period. Once a déve1op ent grant has been awarded, the Tribe has 3 years in the PWSS program and 4 years in the UIC progrn to assun prthacy. During this developnentsl stage. EPA staff need to work closely vith Tribes to isure that comiritments are being net and the prograa is developing properly. eee naeta. . aLl. n i n a A. tes.u ir4 or;fl igg The requirerents f or primacy are specified in 40 CFR Part 142 for the PWSS program and in 40.ICTR Part 145 for the aUIC prograz. Tribes applying for primacy must meet these requirennts and ,ust 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 1989. Tribes applying for pritacy after that date will be required to comply with the new regulation.) 3. PaSS v. The majority of the review and negotietions with the Tribe will be performed by the project officer in the Regional Drinking ‘Water Branch. After a preliminary determination that the Tribe has mit all of the requirements, the Drinking Water Branch should ------- —17— forward the application to the Office of Regional Counsel and to Grants dMnistration for review. (The Region should follow established Regional procedures in this natter. Other offices ay be involved a ’ 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. ------- TREATI4ENT AS A STAT! CHECKLIST Tre. tj fl as _tJ_t e c.ri .tri jjLtp.. be bwitt.d Accept see comments) Upacceptab (a.. comments) t19t mjttad (u. comments) 1. Federal Recognition 2. possesses and e e ises subs tant ial governmental duties and powers. Copy of appropriate BIA ed.ral Register notification (or other documentation showing Vsd.ral Recognition). (a) Sources of governmental authority identified. (b) Description of th organizational s ructure of the Trib, including the powers exercised by each governmentaL entity —— .xecutivu l.qislativ.. anal 3udicial. (ci Description of the programs that the Tribe has instituted to promot . the health, safety, and welfare of the Tribal member.. ------- - to. be. S bmit ted 1 1 cc ptab1e • Unaqceptable Hot Sub itL.d çri e . (sea comments) (see comments) (see coeiv’ients 3. Tribal note: You need not Capability repeat information already provided in 2(b). (a) Description of existing managerial capabilities •mpbaeizing successful managerial performanci of public health programs: (1) Summaries of grants/contracts and associated evaluations. (2) Summary of ejch suvironmental health program managed and th entity chat manages it. (3) Description of accounting and procurement system. (4) Description of Tribal agency that will assume primacy, including discussion of regulator/regulate. conflict. (b) D.scriptiofl of Tribal court system. ------- &cccptable Unaqceptabje N9t_Su!Litt çrj. jxij (i.e comments) (see comments) (see comments 4. Tribal (a) A map dettntnq Jurisdiction exterior boundaries of the reservation. (For SDWA program. include location of public water system. and underground injection wells. (b) Signed statement from the Tribal Attorney General (or the corresponding official) that the governmental duties and powers exercised by th. Tribe are within the authority of the Tribe. g 9ji i Com M1: ------- Attachment B TREATKEIrr AS A STATE APPLICATION PROCESS 142.76 (PWSS) 145.58 tUIC) T Regional Administrator notifies L 1T0 te governmental entities. I, within 30 days 142.76 (PWSS) I 145.58 tUIC Appropriate gevern1tefltal entities I submit comments (to be limited L to program specific urisdicti*ri). TM in a timely manner” 142.71 (PWSS 145.58 (UIC) I Reqional Ad rini5tXatOr notifies Tribe of eligibility to apply for grants. Tribe Submits Treatment a a State Application _____________ within 30 days I ------- Attach tent C Suacested Development Grant Goal ! for tt e nd UICPrimacjL Tribal applicants must commit to assuming prima .çy enforcement responsibility within the designated 3-year period for PWS and/or 4-year period for UIC. The eom.’ itm.nts in the development grant agreements will also have to be negotiated on a case by case basis for sach Tribe; however, the following goals and time frames are suggested for egional use in discussions with their Tribes. Lu blic Water System SuDervisioz . .iz.gpL3 . year 11 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 insure public participation; — Public notification procedures developed; — Mire technical staff as needed; — Resolve any regulator/regulatee conflict: - Sanitary survey protocolsfprocedures developed: — Data processing/record keeping procedures established; — Evaluate previous year’s performance: — Hemorandum of Understanding (including referral of criminal natters as necessary); — Analytical requirements addreued; - Quality assurance plan developed and approved; - Compliance tracking system developed; - Variance and exemption policies defined; — Compliance and enforcement strategy developed. • Final guidanc. on the development of the.necessary memorandum of understanding is still being developed. ------- Attach er t C Page 2 of 3 rear t3 Goals — Evaluate previous years performance; — Demonstrate capability to administer the progra n effectively. Underground Inlection Control Program Ii Coils — Signed Drinking Vater statute addressing at least underground in ectien 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; — Mire technical staff as needed; — Establish data handling/record keepinc procedures. Year 12 Goals Evaluate previous years 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. Lea 13 Goals — Evaluate previous year’s performance; — Complete program description; — Memorandum of Understanding (including referral of crir.inal matters as necessary)’ Submit copies of all pertinent VIC statutes and regulations; - Gain experience running portions of the UIC program; Update inventory. • Final guidanc. on the development of the necessary P1smorandu of Understanding ii still being developed. ------- Attachnent C Page 3 of 3 Year •4 Goals — Evaluate previous year’s perforj tance; — Submit formal request for program approval; — Tribe continues to gain experience running portion of program; — Update inventory; — Demonstrate capability to administer program effectively. ------- APPENDIX 2: EPA REGIONAL CONTACTS Anne Fenn Indian Coordinator EPA Region I (PAG 2300) JFK Federal Building Boston, MA 02203 Phone: (617) 565-3395 Jerry Healey US EPA, Region I Office of Water Supply (2103) JFK Building Boston, MA 02203 Phone: (617) 565-3610 Robert Hargrove Indian Coordinator EPA Region U (2PM-E1) 26 Federal Plaza New York, NY 10278 Phone: (212) 264-1892 Walter Andrews, Chief US EPA, Region II Drinking/Groundwater Branch 26 Federal Plaza, Room 845 New York, NY 10278 Phone: (212) 264-1800 TajKhan US EPA, Region II Drinking/Groundwater Branch 26 Federal Plaza, Room 845 New York, NY 10278 Phone: (212) 264-1358 Arthur Linton Indian Coordinator EPA Region IV (EAB-4) 345 Courtland Street NE Atlanta, GA 30365 Phone: (404) 881-3776 David (Dave) Hutchins US EPA, Region IV Drinking Water Section 345 Courtland St. Atlanta, GA 30365 Phone: (404) 347-2913 Casey Ambutas Indian Coordinator EPA Region V (SME14) 230 South Dearborn Street Chicago, 1L 60604 Phone: (312) 353-1394 Rich Freeman US EPA, Region V 230 S. Dearborn (5W-TUB-8) Chicago, IL 60604 Phone: (312) 353-0849 Ernest Woods Indian Coordinator EPA Region VI (6E-FF) 1445 Ross Avenue Dallas, TX 75202 (Phone: (214) 655-226 Mac Weaver US EPA, Region VI Water Supply Branch (6W-S) 1445 Ross Ave., Suite 1200 Dallas, TX 75202 Phone: (214) 655-6444 Protection Protection 109 ------- Len Pardee (6W-SP) EPA - Region VI Water Supply Branch 1445 Ross Avenue Dallas, TX 75202-2733 Phone: (214) 655-7155 Michael Bronoski Indian Coordinator EPA Region VII 762 Minnesota Avenue Kansas City, KS 66101 Phone: (913) 551-7291 Talva Hayes US EPA, Region VII Water Management (DRNK) 726 Minnesota Avenue Kansas City, KS 66101 Phone: (913) 236-2815 Sadie Hoskie Indian Coordinator EPA Region VIII (8OEA) 999 18th Street Denver, CO 80202 Phone: (303) 294-7596 Joe Sarcone US EPA, Region Vifi Water Management/Drinking Water (8WM-DW) 999 18th Street, Suite 500 Denver, CO 80202-2405 Phone: (303) 293-1420 Roccena Lawatch Indian Coordinator EPA Region IX (E-4) 1235 Mission Street San Francisco, CA 94103 Phone: (415) 531-4843 Bill Thurston US EPA, Region IX Drinking Water Branch Water Supply Section (W-6-1) 1235 Mission Street San Francisco, CA 94103 Phone: (415) 705-2111 Gretchen Hayslip Indian Coordinator EPA Region X 1200 Sixth Avenue Seattle, WA 98101 Phone: (206) 442-8512 Craig Paulsen Mail Stop WD-132 US EPA, Region X 1200 Sixth Avenue Seattle, WA 98101 Phone: (206) 442-4350 Roger Barnes (WH 550E) US EPA Office of Drinking Water 401 M Street, SW Washington, DC 20460 Phone: (202) 475-8997 or 245-4194 Maitin D. Topper, Ph.D National Indian Program Coordinator USEPA-4O lMStreet,SW Washington, DC 20460 Phone: (202) 382-7063 FAX: (202) 252-0129 Division 110 ------- APPENDIX 3 FACT SHEET DRINKING WATER REGULATIONS UNDER THE SAFE DRINKING WATER ACT MARCH - - 1990 111 ------- S r i....,. FACT SHEET Criteria and Standards Division Office of Drinking Wafer U.WS. Environmental Protection Agency Washington, D.C. Drinking Water Regulations Under The Safe Drinking Water Act March - 1990 ------- LTab e of Corttentsj ____ j afion [ Page 1 Requirements under 1986 An’iendmertte to SDWA I Major Statutory and Regulatory Ac ozij of the SDWA 1974 . 1986 4 Major Statutory and Regulatory Ac cms of the SDWA 1986 . Present 5 Contaminants Required to be Regulated wider SDWA of 1986 and Drinldng Water Priozity LIst 6 Table 1:83 contwth anb required b be regulated wider SDWA .11986 6 Table 2 Co tszt rwioved from bet .183 7 T aba3:Sube tu WWAIht . 183 $ Table t Drinking Water Priority Llet $ Summamy of Deadlines under SDWA of 1986 9 Table 5: Summary of Deadlines and Ragulatoiy A s 9 FluorIde 10 Volatile Organic Chemicals 10 Table M /MQa U Table 7: CompUan 1usd o System 11 Table $ U*wsgulitsd VOC. MtI thg 13 Public Notification Surface Water’fteatment Rule 16 Tab 1e9 M Cs *itemman 16 DRAFT: $l2$IS ------- ‘-F ITable of nts ( ation Page Surface Water Theatrnent Rule Cont’d Table 10: Sampling Prequendse f Total and P l Coliform for lource wa r quality attarla 17 Total ColUorm Rule 21 Table 11: Sampling Bequfrementa heed ott PcpuIa ott 25 Table It bpeat Mcmftot1ng 24 Table 13: SanItary Survey Frequency for S afl Systems 25 Lead and Copper V ‘ftble 14: Proposed MCL and MCLCS fci Lead and Ccpp Phase 11:38 Incrgardc and Synthetic Organic O en 1als 7Able 15: Proposed NPDWRI 31 able 16: Proposed hAT 1 ble 17: Proposed t(CLa 34 Phase V: 24 InorganIc and Synthetic Organic Chendcsls Table 18M , Ma 1 s and Cardnogsnldty C IIa ai Eaatonucl ldeP Vlslnfection and isInfection By.Producb 1 Moidtcrb j Zequbsmente .41 National PrIn aiy Drlnldng Water Regulatiorm C Table Sotimaq..fNPDWR. C National Secandazy Drinidrig Water Regulatice 4’ Table 21: SMCa DRAFT: $1221 ------- DRINIUNG WATER REGULATIONS UNDER THE SDWA AMMENDMENTS OF 1986 Sign3ficant direC v A’s stand gprogran fordrthklztgwaLsr ointa xttejnduded in the 1986 Ama 4mei%b to the SDWA a e provided below. EPA must set Ma dm wt Contaminant L ive! Goals GACLGs) and NatiortiJ Primary Drinldng Water Reguladans OIPDWRs) foe ft3 spedflc contan 1naztta and foe any other ntandnant irs drinldng water which may have any adverse effect up t the health of persona and which Is known or anddpat.d to o ar in public water sys s Recommended Ma dmum Contaminant Livels MCLs) are now termed Maximwn Contaminant Lvel Coils GACLCs). No diangu were made in the basis of an MCI .G; MCLG are non-enforceable health goals which are to be set at the level at which no known or anddpated adverse health off. cw and which allows an adequate margin of safety. Mvdmum Contamlnaxttlave]s (MCd) mustbssetas dose toMac. isis feasible. 7he of dVf j was changed to the fcllowüig Feasible means wfth the use of thebestte nob , satotmtttsduiIquss and other means, which the AdmInIs ator flndL aI ezamktadon for efficacy under field condidons and not solely under laboratory conditions, are available (tildng into consideration). The SDWAstates that Granular Activated Carbon (GAOl. feasible for the con ol of Synthetic OrganleChernicals (SOC.), and any technology or other means found to be best available for con al of SOC. must be at least as affective In coiwofling SOCasGAC. MCLC. and MCIa must be proposed at th.same tim. and also promuipted —I M LCs.NPDWRs and moidtoring requirementa are tobe set fore contamlnanta listed In the SDWA. NPDWRS osatbe either MCta or eatoient t.dudqu. equIrenten . The Seat AvaflableTichnology (BA’I Is also tobe .pedf led for each o ritaminant for which Ma is tablishsd. Table 1 lute the costtamlrtanta required to be regulated. Seven aubstitutea were alloWed If regulation of any seve other contanilitanta would be we protective of public health CseeTabbei2 and)). The final list of mabstitutes was published Januaiy . 19w, I 5$Afls 3123110 ------- The statutory timetable to produce the MCLIGS and NPDWRs was as follows: • gbyJunel9,1987 • 4ObyJur e191988 • 34byJwi19 ,1989 MCLCs,NPDWRs and monitoring requirementa must be set for other n inan In drinking watst that may pose a health risk. • Th. 1986 Aniendmente require that A publish a Drlnidng Water Priority List (DWPL) of drbddng water ntamlnante that may require feguladolt wider the SDWA (ass Table 4). • The seven substituted contanthianta must be Induded on the drin]dng water tyIIst . • The list must be published by January 1,1988, and every 3 years thereafter. a MCLGs, NPDWRI end monitoring T Iremente are to be set for at least 25 contaminante an the list by January 1,1991. • MaGs, NPDWRI arid monitoring veçilremrite are to be set for at least 25 conten Inartte every 3 years following January 1,1991 (e.g. 1994, 199Th 1 m _t ennial Criteria must be established by which states must detemdne which surface wa systems must Install fll aticn. The SDWA deadline for promulgating this aiterta was December 19, 19g. States with primacy enforcement responsibility must make determinations regarding fll ition within 12 months of pr mulgatioii of these aiterla and must adopt regulations to Implement the onreçdrementa within IS months of promulgation. A eatoient technique regulation must be promulgated which wm require ill public water systems to iae dleWection . • Variances will be avaflable. A will spedfy variance 1ter1a, (e.g quality of rcs water, protection afforded by watershed mar agement) • Th dWnuection eatoient nil. must be promulgated by Jim. 1,, 1989. The 1956 A ientabanned the use of any e,aolderjlux or fittings which are not 9iad free ‘ma public water system or anybuDdlng connected toapublic water sys i. Ph and solder may riot have more than 02% lead and pipe arid fttth p not more n 8% lead. 2 DSATti 3123/IS ------- R.qulremente must be set for water systems to monitor for unregulated ntarn nan .. • Minimum monitoring frequency Is five years • States may add/delete n aminante from list. • Requiremente to monitor for unregulated c c amininte monitoring must be promulgated by December 19,1987. MCLGS/NPDWRs arid monitoring Ivqulremente must be reviewed by EPA every three ysa Other requfr rite/provisions of the 1986 Amend • Public no fi on regula ons may be changed to provide for different types and frequendas of node depending upon the potendal health risk. • BAT for Issuance of varianCes must be set when MCL. are set. BAT may vary depending upon the siz, of systems and other factors, Including coste. • Ezemp ons can be extended for systems with 500 service connecdons or less. No limit Is placed an the number of extensions but certein a1terla must be met Table 5 Includes a summary of deadlines perdnint to standardietdng. AD current drh 3dng w eguladons. which havebeen promulgated as ofjulyl in any year,maybefondIn th40oftheCO!Fde’a1RtS1daH4fl1(CFR)s.Pa 141,142, and 143. Reguladons published between R edidons may be found In the 7 rel Re 4 (FR). Par addidonul Informa an, conts Safe Dririldng Water )iotiina S00-4264 91 or (2w) 3 5 3 US. tnvliuwiental Pwtscdon Agency Ottsrla arid Stendards DMsIon fice of DrIrikIrigWa (WHISOD) 401 M S ist SW. Wuthgton ,D.C. 0 3 DMI s 3/U/SO ------- Major Statutory and Regulatory Actions of the Safe Drinking Water Act •.•• 1974k 1986 ‘-:.. Statutis • Dcembsr 19.1974 Drinking Watir Act of 1974 $11 Pagi . -:. Dscvnbir24.1976 Estoblsh.dNIPDWRsIor1OIOCs. 6 Peslicldu. Total CoEarm and Tiabldlty ;r’ 9. 1976 ; . ..A. i Fk’iol Ruis ‘ r :’ “ ‘. Est lIshed NPDW for Rod’scnucldes R’k Estoblbhsd NIPDW for ‘ ie 6 WU I. 1W. ‘us 4 0A T, 31231)0 ------- I.aulatlons 5.. Pagi L....JLj1*19.1986_., $ fi Drinking Wat•r Act Amm.ndm.nt$ of 1956 cu;... Octob.r 31. W88 Liod Contamination • - Control Act of 1911 . ‘..8VOCs and Unriguloted Monitoring a I uIW1 Y . iv — - —: ft iLMofB3andDwpL - :. Ii ’ Jime 29. 11 r I Rsvls.d NPDWRI for Total Colrnxm: 646 l Rtratlon 4 Dk fct1ej Requlrsmonts c. ..st2a S ,qpos t 1- 1 Major Statutory and Regulatory Actions of the Safe Drinking Water Act ‘1986• Present $tatutis $ S)Z?: 3I23I S ------- Contaminants Required to be Regulated by the SDWA Ammendments of 1986 and Drinking Water Priority List The origbta] p up of ntan Inanta required be regulated by the SDW/ M xnendmeitta appeaied InAdvar*ced No&es of Prcpcsed Rulemaidnp published iz the F er.1 Rqiit on Mardi 4.1982(47 FR 9352) and October 5,1983(48 FR 455C2). Fu’al gubsdtute to the Drfnidi g Water Pria fty Ust (DWPL) no ce were aigred by the AdmthIs ator on January 13,1981, and published bi the Fth el Rqister on January , 1988 (53 FR 1892). Table I shows the LIst of 83 ntanthianta. Table 2 shows ntamlriarita ie toved f n the list of $3 Table 3 shows the mibithute added Table 4 ihows the #IPl. ; •.:::• • List of Contaminants Required to beReplated -• under the SDWA Amendgtenb of 1986 Volatile Organic Icsls J U.D Nomethy3sM .’ 1 1ddorobanzciw.’ Carbon te adior’4e.’ d.4 .2M1ddometh 1u 1 1.U•Thdiloroethare •‘ Qdorobenzsrse . evi.42,D ddorosthylsn. .’ ‘fllddoroethylaie .I Dichlarobsnzerie •‘ Meth 1ene chloride . Vinyl chloride.’ 1.2, .D lchloroethane.’ Te ach1oroethyl.w .’ j MI ubIoloDsndT rbld1ty 1 d l i l aiflhlk .0• Standard plata LegIonefla . Total U(orms.’ Vbvs .’ Alun hium .’ An mo .’ CyanJd.•’ Azs enIc.•S0 luorId..e• Sodh .I Asbete.’ ladu Sulfate.’ Muaoy.* TIvflh . ’ Bsyflhmi.’ Molybdem .’ Vanadh i.’ Cadn h . 1 Nidisi.’ CSItt’4 Nat Pq 4 ,l,$, . ------- Tabti I Cont’d Aaylamide DIncseb•’ Adipates’ Diquat• 3 PCBs .’ AlachlCT” EDI . P.rktachlorophenol .2 Aldicarb 2 EndothaU•’ Phthalates- 1 JØ, •. 4 ’ 2 EM i Plddora t•’ Aldicarb suifoxade ’ Epkhloroltydrln .2 Sima zia ‘ APuln-’ Ethylbenzeit. . 4 __ Carbofurazt• 2 Glyphosate•’ 23 ,7&T DD Dloadzt)•’ Qtlordarie ’ I4eptachl • b Tahiei a •2 Heptedt1oupo d. • Tcxaphene ’ Dalapat .’ doropen dIen . .’ WI ?.’ Lbtdane•’ Vydate.’ Dikomoutemiiw • - NI Ite • 4b3 Xylssi. . M.thaxyddor•’ RadIon el1des lets partid. a td photoit radioactivity.’ RadIum 6.’ Radat.’ Grass alpha particle activity.’ Radium 8 •‘ Urardum.’ * COIttamIfl13t with MCL srid MCLC i ulgated Julys, 1987 (i.e page ID .13). 2 C ntamhwt with N?DWRs proposed oit May fl, 1989 (see page 21.36) Casttamlnsnte with N?DWRs sdieduled fo proposal bt lanuary 1991 (see page 36.39) CattIw with N?DWRS prwitulgated cut JUne 29,1990 (i.e pap 16.29) Coittaininante with NPDWRs idieduled for proposal In Jw . 1990 (i.e page 35.36) Cont&uilnante removed from the list 88 • CntamIAII $ added the list 88 • Canta dnaztte with NPDWR prcposed Izt August 18,1988 (see pap ) idefinaJrulsApfflZ I9S6(3Sp1Pl 8 ) “ Arsenk to be regulated In separate nallng In late 1990 ondi to 1 1 ’• — Alu dm Molybdenum Sodh Dibromomethine Wv Vanadium ur*s 3/23/3* ------- Table 3 F Substituted List of 83 L I AIdi rb sullon Ethylbenzene H.pticldor .po de Styre!te [ Mrbsuifo,dde Hep ch1or NI I AlwrJnum Cryptosporidlum Isophomne A ton1i Cyana ne Methyl te*butyl ether Boron Biomobenzene Dfbr omoa iLiUt11e Met1bu n B rornoch1oroacetord fle Dfbron odo wthezis Molybdenum BzodJôibr ethane Vfbicmcmsthans onsbypmducb Bromoforin Bromomethaxie Dklceasortcml Sts Sodium Odors dns 1,1.DidilorosthsM Soonthm O lcrsts 22.Dlchloivpropu* 2.U”T. O 1orix 1.1.Dichloivprcpen. 1,1,I2.1b schloroethane Odorine dloidd. 1 Dkhlorcprope e 1122.7 sd Ioioetha ne Oilori 2,4.DW otoJu Thoicetwd Ue Odoroethane rw Odoroform HaIogen ed adds, Thflurslin Odoroinethane Akd1oI A3dehydN, Vanadium and dorotoluete other MfrD . pOduiotolue MypoddorI $ DM12: 3/234 ’ ------- TableS Summary of Statutory Deadlines and Regu1 tory Actions iander SDWA of 1986 Lwlta J Lw ?1 9 MCLGs and N?DWRa/Monltotlng June 19,1987 Fluoride MCL/MCLG — Final April 2.1986 $VOCFbVl JulyS,1987 Propose Seven Substitutes June IL 1987 7 Substitu Proposed July 8,1987 Public Notice Reiielons Sept. 19.1987 TN Revisions — Final October 28,1987 Filtration CrIteria Dec. 19, 1987 PU a cn & D fe cn Rule — Final June 29, 1989 Monitoring for tbvegulated Contaminants D.c 19,1987 First Group — FInal July 8,1987 Seonnd Group — Proposed May fl. 1989 First List of Contaminants (DWPL) January 1.1988 List of 83andDWPL—FInal January22, 1988 40 MC.Cs and NPDWRWMoidtozbg June 19,1918 L.ad/ Copper Rule — Proposed August 18.1988 38 IOCs and SOCs hase — Proposed May 22. 1989 34 MCLGs and NPDWRIIMOZIILWIII June 19,1989 Tot.] Coliform — Phial Jun. 29.1989 4 Miaob. and Turbidity — Pbial Jim. 29,1989 2410Cc and SOC. hass V) — Exp. Proposal Jun.1990 6 Radlonudldse — Eq. Proposal September 1990 Arsenic — Exp. Proposal December 1990 Disinfection Trsa ent Jun. 19 1989 PUPation and Disinfection — P1 .1 June29, 1989 Ground Wa Disin. — Eq. Proposal January1991 23 MCLGs and NDVRWMoidtwb$ Januaiy 1.1991 Disinfection Iy.products — Eq. Pioposal S.ptem 1991 Daarrz 3I23/ S ------- STATUS: NATIONAL PRIMARY DRINKING WATER REGULATIONS de APPM.OctObIT5,19S3(487l453 ProposedMCC•May141985(5OF* 164) F na1 MCLG,Pzcpcsed MCL I SMCLM m c b gr.qufremszt •Novsmber 14,1985 CSOFRQ142) F1r a1 MCLI SMCLutd mci th g requfreme . Ap fI 2.1986 C51 FR 11396) aIMC.G 41mg /i FInaZMCL tOntg/l Final SMC. 2.0mg/i Final Mo7dtcTthg • I pr year eutface wa s • Ipe 3ysarsgrowtdwatm • Mlnlnnamnpeat: Ipe1O 7W$ I ‘ ° “ ‘!.°° • I ANP M.Mardi4,1 (47FR98 PrcpcsedMCLCi.jwisI2,19$4C497R24330 Final proposed MCL. and toring v.çalremet . November 13,1985 Raprapasal MCLGFMCL. for pai’.d1ô iorob.iizans . ApTil 17,198702 FR 12176). Final nilea stgn.dby Ad atoi.Jim. 19 19 idpublls)ied in JuIy$,19V F&$69ø. orr No cm 1988 1J3 FR 3108). *0 M’?s 3123110 ------- Table 6 VOCs’ Final MCLGS and MCLe (In mgt!) BAT under SDWA SectIon 1412 O 4CLs) utd SectIon 1411 (VarIan s) Packed Tower Mra ori (PM) and Granular A vated Carbon (GAO for the 4ht VOC, except vinyl dilorlds flAforvbiiyId lcetda. Compliance MonItorIn Inl al MOnItCrIng AD systems must morthor eadt source at least once within four • Surface waters 4quaztely sample • Ground watezs 4çaarterly san%pleE $ te cen en pt systems from subsequent wcnI rlng If ii. VOC. detected hi first sample • Contpceite sample of up five s aflowud Repeat m d rIng vale from qusilerly only at stete dlsaidoit. The frequency based on whether VOCs are detected In the first round of monitoring, whether iys Is vulnerable to ainInatior 1z of system and source of water . Flail Final O’emIcal MCLG MCL •Benzene 0 0005 Carbon Te ’achlorld 0 0005 1,2•Dlchloioethan e 0 0.005 1.1•Dichloioethylene 0.007 0.007 pira.D lch lo robenzene 0.075 1 0 75 1,1,1.ThdUoroethans 020 020 ‘fl’Idiloioethy len. 0 0.005 Vinyl Diladde 0 C.0 U neaFr 3/13/SO ------- a1Metlh0d5 CC iGC1MS ‘ Methods 504, $02.1, 503.1,324.1,3242, sou Laboratory Certification Crfteris StVOCs 2O% O.01OmgFI ±4 cO.OIOutg/l % nyl Odoride: ± 40% Method Petection Limit 0.0003 mg/i Nonfranhleflt Non”communlty Water Systems UffNCWSh Non- mmurdty water yslems whidi regularly se e at lust 25 of the saz’ . persoma over 6 months per year Ode. , NonTranilent NOnICOmwWdty Water Systems) ar required to meet all requfrementa In this r 3s. PoInt-of.En y (POE), Polntof•Vse (POU), and lottled Watem POE may be used to achieve mplIan with M s but Is not BAT. POU and bottled water wuiot be used to mist MCL. (see variances and eiemptlo : bsiow). Variances and Exemptions MacondIdoncfIuungaVUianCtCf ption,.tates heauth requb the water system to Imp lernent addltloMl b terImcoi aI measures. Van w reasonabl risk to health e dsta, the state must require either Installation of POU devl t dIs 1bution of bottled water to eat cus mer. Monitoring for Unregulated VO Methodolo ’ same as for regulated VO . bdtlal monltorbg Systems must monitor each sowcs for imregulated VOC during low year period. Systems serving fewer than ISO service connections way send a leti. to th. state stating that the system Is avaflable for sampUrig. • Swface wa 4 quarterly samples • Crowd watsiE I samp s • Composite samples of up to Bye allowed Same phase-hi schedules as comp ana monitorIng U DPAT?a 3I23 ------- Monitoring for Unega Iated VOCi 51 VOCi spedfied (see Table 8): • List I: required for 11 systems 34 VOC ) • List 2 required for vulnerable systems (2 VOCs) • LiSt 3: required at state dIs edon ( 1$ VOC.) Ripest wdtorIX%g Every five yuze; A will edfy a new list Monltoring for Unregulated VOC J Oilo,cmethane Odorotolu ET 12.Dibromo3.ddcicprcpans B ) Ethyl dibromld. (EDI) I S t DLsaetLor 1 1roaiod lwomethans pTscptopy ltolumi. n4utylbenzene 13Tt1d 1oo rzmt tap 1 thi1ene sec4%atyThelZWlS D.Prcpy entml. *1uty1obenane 12.Thddozobeztzei. O r od MM Puoro ’tddoromthane U5.Thmethylben . IAS ’Thmethylbenasns 1sopropyThenz i e [ Requ for all 1)1tS 1 th . 1rDmOfoT5% othane Odorobe zane Odorod omo ne ddorobenzani oethane Ethylene dibtomide w1benzene DId IOTOUteth.M U•Dfr.Womethane d.U.D ldtlo roethi. b ani4 .DicNovosthy1m s 1,l,12.Te aoethute 1U2.T.uachlwoethane Ta arothvl e 12 Dlbromo3’chloro’propane V Tolu te 1,1,2.Thddoroethane U.3”Trid loropropane atuXylens o.Xyl p’XylsIts 13 DIM’?i 3/23/50 ------- ‘ -F __ __ cNo icatjon EPA promulgated new reguJitiDna faT public noli tion o October 28,1987(53 FR 41534). Public Watt? suppliers were required to begin complying with these rules on April28 1989. Casslficatlon of Violations Ties I VIOILtiOnJ are directly ielat.d to potendil adverse health ffiecte. They thdude: • Failure to comply with * MCLj • Failure toconiply with a ea ent tedtnlque drement that hasbeen established InIIeu clan MCLaxtd • Failure to comply with a e& edule presclbed wider a variance or eniptiori . TIer 2 Vloladons do riot pose a direct threat to public health however, they are significant eitough to warrant public notice. They thdude • Failure to comply with monitoring requfremente • pg , to use or comply with spedfled test proosdure. and • lasuance of variance or an . cemptice1. Information Included In a Public Notice • A dear and understandable cplariation of the vIolatico • Information about potential adveise health eff,cte Including epedfic mandatory languap that must be provided by aE systanis with TIer I violations and by eli . ‘stems that have bean Issued a variance or • Identification of the population at r1a • An Irtdlceticn of the steps being bJ en to cored the proble • Information about th. need for alternative water supplies, If any • P sventive measures to be taken until the violation Is conscte* • Nod must be dear arid conspicuot • Notice must riot c ntsIn unduly teduilul lariguagt • Notices must not contain unduly esnali prth • Notice must Include the phone number of the owner, operator, or designee of the public water .ystem and • Where appropr1ate ziod must be mul InguaL U 3123/si ------- Ways to issue a Public Notice Through the bc . ] .lectorJc media in the local daily newspaper; By direct mail; the customers’ water bills; Byiwiddeliveryor By nbrwous posting In a nsplcuous place. his Important note that all s stems that serve areas that do not have a daily or weekly newspaper, must provide notos by hand delivery or posting. > Public water systems must provide uples of the public notification the state drinking water program. The ownsroroperatorof the public watirsysteni is legally responsible for ensuring that all public notice requ1remen are met. Timing and Frequency of Public Notice The timing at public notification Is the same for eadt type of violation. Following Is an explanation of when notices are Iiaued • WithIn 72 hows 1. Notice byall systems via the electeordc media for Tier I violations; or 2. Noticesbyncet’c mmwdtysyatems via had deliver opo.tingforTie I Acute vio l atiOns • Withinlidays I. Newspaper notices by ill systems for all Tier I violations; or 2. Notices by non. mmuzdty systems by posting or hand delivery. • Within 4$ da I. Notices by all murilty water systems by direct mail, In waterblfla, crby hand delivery r all lI I violations. • Wlthln3mottths 1. Newspaper notices by all systems for Tier 2 vkladona c i 2. Notices by non.cammurdty systems by posting or hand delivery for TIer 2 • Repeated evsry3 months I. AU notivenby all dIr.ctmaflorbanddeUvetykrboth Tier I and Thi 2 vIolations. • Continuous notice I. All notices given by posting, for as long as the violation dste. A U notices must be provided within the proper time Ilndte, even If the problem has been rr 1$ Daar7 3/231*0 ------- [ Surface Water Treatment Requiremei j Proposal published in Federal Register . November 3,1987 (52 FR 42178) Notce of Availability, desa bing new regulatory cp ons, published In the Federa l Repstr•May6, 1988(53 FR 16348). p Final rule pr mulgated . June 29, 1989 (54 FR p486). T 1e9 Maximum Contaminant Level Goals Coverage: AD public water systems using any aw’face water or ground water under the direct Influence of surface water must disinfect, and may be required by the state filter, unless certein water quality source nç Iren ente and site specific conditions are met Tha eitt tedwJqus requlremente are e.teblisbed In lieu of MCL for CIodIa , viruses, beterotrophic plate count bacteria, Zqfoneila and turbidity. fleatment must addevs at least 99.9 percent removal and/or b ac vat1on of Gierdla tenth! is cyste and 9919 percent removal and/or nactha on of viruses. AD systems must be operated by qualified operatore es determined by the stete. criteria to be Met te Avoid Fflfralion Source Water tesla Te J ncennmus .d2O/10Omlcrth. J coliform concr s cei must not exceed 100,100 ml before disinfection In more than ten percent Of the measuremm te for th. previous six nionthe, celadated eadt month. Table 10 liste minimum sampling frequendes for fecei or tal coliforni. General Reqiabemente 16 OMFTz 3l23 $O ------- f Table ià1 [ Sampling Frequencies for Total or Fecal Coliform] System size ( persons)1 Samples I Week c50 1 I 50 1•3.300 2 330140,000 3 10,001.25,000 4 ) 25,000 5 If not already nducted wider the above Iremente, a ceworm test must be made each day that the turbidity exceeds I NTU. Turbidity levels must be measured every four bows by grab sample or nth uous monitoring. The turbidity level may not exceed 5NTLJ. lithe turbidity exceeds 5 NTIJ, the system must install fil a on unless the state determines that the event Is unusual or unpredictable, and the event does not occur more thin twice In any one year. or five mes In any nsecudve ten years An ‘event Is one or more nsecu ve days wlwt dt lust one turbidity measurement each day exceeds 5 NTLJ. Site Specific CsndWone DisinfecUen ‘ DlsInfecUon must achive at least a 99.9 and 99.99 percent h ac va ori of Ciariia cyste and viruses, respecdv.iy. This must be demonstaled by the system meedng C’F values In the rule (‘VIe I. the product of residual conan a on (mg/i) and ntact me (minutes) measured at peak hourly flow). ‘C end r must be determined at or prior to the first customer. ‘flie tote] percent InacUvadon cenbe celculstedba.sed on unlimited disinfectant residual measwemente l it sequence prior to 1 1 w first customer. Faflure to meet this requirement cit more than one day In a month is a vicladon. FU adon Ii required Us system has two or more vloladons In a year wdess the state determines that the viciadoit(s) were aused by unusual and unpredictable drcun stantes; reg&rdl of such determlnadons by the state the system must U there are three or more vicladomi In a year. DIsthf.cUcnsystemsmust a) Have redundant ceotponente Indudirig alternate power supply. automadc alarm andstarupze tdnuous dislnfec11on of the water dwthgplaztt operadon or. b) Have automadc s)nat’off of delivery of wa to the dlsbibu11cit system whenever the disinfectant residual Is less thait 0.2 mg/I., providid that the state determiz that a shut.off would not a potential health risk to the sysW- 17 D JTa 3/23/i l ------- ‘F For S7StSnt5 using chlo j t. ,UChlø l eis added prLor to ammonia, the CT values for achieving 99.9 percent inae va cn of Gierdia lamblis eysta can also be assumed to eddew 99.99 percent Inu vadofl of viruses. Systems using dtlorarnines and adding ammonia pr4or to cJ Jorjne rust dentons ate with on .slte studies that they achieve 99.99 percent flaC vi on f ijuses. For systems using disinfectants other than chlorine, the system may demoris ste that other CT values than those specified In the rule, or other disInfec on ndI ons are provided which achieve at least 99.9 and 99.99 percent Iric va on of Giordia lamblia artd viruses, respectively. Disinfectant residuals In the d s (bution system cannot be undetectable In more than five percent of the urnphs,each month. for any two njecutive months. Samples must be takei at the sante frequency as totel colUorms under the revised Coliforut Rule. A system may measure for ) C in lieu ofdlslnfecbntreslduaL lithe )WC measurement is less than 500 ionIes/ntl th. site Is nsIdered to have a detsctable” 1dual far mpliartce purposes. System, hi violation of this requirement must install filtration unless the state determines that the violation Is not caused by a defidency of treata ent of the source water. Tar systems which cannot malrttaln a residual or practically monitor for I the state can Judge whether adequate disinfection I . provided In the dis Ibution iys i. Systems must maintain a disinfectant residual o teentratlori of at least 0.2 mg/i In the water entering the system. demonstrated by ntlnuous monitoring. If there Is a failure in the continuous monitoring, the system may substitute grab sample monitoring every four hours for up to five days. If the disinfectant residual falls below 0.2 mg/I, the systemmuanostiteassoonupo.blaterthantheendoftheririt business day. Notification must include whether or riot the residual was restored within four how,. lithe residual Is not restored to at least 0.2 mg/i within four hours, Itla a violation and the system must fitter, wilses the state determines that the violation was caused by unusual and unpredictable drcwnatan . Systems serving 3300 people or less can take daily grab samples In lieu of tthtuous monitoring. Mirdnnun grab sampling frequendes are 1/day( 301 people; 2/day 301 • 1000 people; 3/day 1001 2500 people; 4/day 2501.3300 people. If at arty time the residual Is below 0.2 mg/I, the system must conduct grab sample monitoring every four howe until the resldu.F restored. Other Conditions Systems must maintain a watershed coi*ol program whldt will minimize the potential for contamination by human enteric viruses arid CLo’dis IambU s cyste. Systems m monitor arid control the activities hi th. watershed that may have an adverse Impact am water. Systems must demonstrate through ownership or written agreementa with landowners Iii the watershed that they are able tolimit and control all human activities that may have an adverse Impact upon wa quality. Thi watershed control prograw and disInfection beatotent must be Inspected aruitte arid approved by the ste aanually. 1$ PAZ : 3123f I ------- Systems must not have had any waterbome disease outbreaks, orif they have, such systems must have been modified to prevent another such occurrence, as deterrruned by the State. Systemsu%u$t not be out of compliance with themonthly MCLfor total coliforms (or any two months In any consecutive 12 month period, unless the state determines that the violations are not due to veamtent defidency of the source water. Systems serving more thanlO,000 people must be In compliance with Mqufremen for tote] alomethanes. 1t.th for Yfliered Systems TurbiditY Monitoring Turbidity mustbe measured every fourhowaby grab simple or conthtuousuwrUtonng. Poe systems using slow sand fll ationor fll ation technologies other than conventional eatetent, direct fll ation or dlatomac.ous earth file ador, the state may reduce the saznpllng frequency to once per day. Th state may reduce monitoring to one grab sample per day foe all systems serving less than 500 people. Turbidity Removal , in onal fil atlan or direct filtration wa must achieves turbidity level In the filtered water at all tintes less than S N’N arid not more than 05 NTU In more than five percent of the measureinenb taken eadt month. The state may ktceue the 0.5 NTU limit upto less than I NTLT In greater than or equal to 95 percent of the measurementa, without any demons atian by the system. If It determines that overafl eato ent with disinfection achieves at least 99.9 percent arid 99.99 percent removal/Inactivation of Giardia cyste and viruses, rssps vsly. 5low sand itration must achieve a turbidity level In the filtered water at all times less than 5 NTLI and riot more than I N’TU in more than five percent of the samples taken each month. Th. turbidity limit oil NW maybe Inavued by the state (but at no time ezceed5NTU) lilt determines that there Is no significant Interference with dlslnfictiorL p1a mj cpu* flliratio must achieve a turbidity level in the filtered water at all 5pJa,%goinotmorethanlNTUInmorsthanfivepercentofthe ump es i sra each Other filtration t.duiolo 4ee may be used If the system demonstrates to the state that they achieve at lust99i aM 99.99 percent removal/Inacti vation oIGierdia Iemblia cyste and viruses, respectively, and are approved by the stote. TWbIdIty Umite for these tuduiologles are the same as thce for slow sand fllvation. b dudIng the allowance of 1rs saaing the turbiditylimit oil Nih up toSNW,butst no time exceeding S Nih upon approval by the state. 2 , D*AFh 3/23/50 ------- ‘ 7 Disinfection Requirements ‘ °“ th must achieve at Inst 99.9 and 99.99 percent TeTrIOV*1 / inaC V5 Ofl of Cirdia cyste and viruses, respeC vely. The states define the level of disinfec on Tequired,dependlngon tec)uiology and source Water quality. Guidance on the use ofCTvalues tou ake these determina On5 IS avaLlable In the Cuidinee Manual . Recommended levels of Inac vattcn ye based on ecpected occurrence levels of Girdia cyste In thOoura water and the fll at1on inO1OgJIi place. DtMnfec on requirements for pobit of erthy to the d1s Ibu cn system and within the dls ’1bu on system ate the same as for tuifiltered systems. Analytical Requirements Except for ozone, testhtg and sampling must be in accordance with iindir M th s, 16th editl on, or methods appruved by A for total wlifonns, face] colIform, turbidity, disinfectant residuals, temperature, and pH. Residual disinfectant concenvatlons for ozone must be measured by the Indigo Method or automated methods which are ailbrated in reference to the resulte obtained by the Indigo Method AU parametere required In th. rule must be reported monthly to the state. Unfiltered water systems must also report aNtuafly on their watershed coned progrim and on site Inspectloris. Compliance Surface Water System. Unfiltered systems must meetmonltorlng reçdrsntezttsbeglnnlngl$ months following pr mWgation of the final rule (by December 31,1990), wdsas the stats has determined that fl1 adon Is required Unfiltered systems must meet the afterla to avoid fll atlon begInning 30 months following promulgadot unless the state has determined that fll adon Is required, or they am In violation of a baatoisnt technique requirement. Unfiltered systems must lnstsfl Rleatiomwlthbt 11 months following the feflure to meet any one of the alterla to avoid fil ation, or within 41 most following pr c ulgatlcn, whichever Is latsy, or they are in violation PEtered sy niust meet mordtodng and performance reçalremente beginnIng 48 The interim Iurbldfty monitoring and M . tsqtdrsments w remain in effect for vn tersd systems tm 30 months following pr utuIgatiosi, and for filtered systems wt 4$ monthsfoflowlng promulgation. For systems width price to 30 months following promulgation the state determines nu t filter, the interim turbidity requirements wE] remain In effect im 4$ months following pri inu)g. on, or mmdi fU aUan Is Installed, whid’ ever Is lam. 5S flz 3231 50 ------- Ground Water Systems Uitder Direct Influence of Sufact Water AU systems using ground water under direct Influence of surface wate? must meet the eaunent requiremente wider SWTR. States must determine which Community and noi% ’CO2nmu dty ground water systems are under direct Influence of surface water within Syea.vs and 10 years, respectively, following promulgation. Unfiltered systems wider the direct IMuena of surface water must begin monitoring within 6 months following the determination at direct Influence unless the State has determined that itidon Is required. Systems wider direct Influence of surface water must begin meeting the aiterla to avoid fll atiart 18 months after the determination of direct influence, unless the statehas determined that filvationla required. Unfiltered systems wider direct Influence of surface must Install fiI aticrt within 18 months following the faflure to meet any of the atterla to avoid fil adco. Variances Varlan are not appliabis. Exemptions are slowed for the requfremót to alter. Systems using surface water must disinfect (La., no evemptions). E .mptions are allowed toe the level c i disinfection Proposal was published hi the Fatuat Rqisv . November 3,1987(52 PR 42224). Additional regulatory options were published in the Fd a1 RqIster . May 6,1988(53 FR1634O) PIztal nile promulgated. June V.1989 ( 54 FR V560. Effecthe dais AD pubIc waW Systems must meet the revised Snal coliform MC I. and monitoring r.çalremente 11 months after promulgation ci the regulaticma The cwTsnt nile remains hi .ff.d wt the df.ctive date at the revised nile. Ma mgm Cssdamlnesd Level Cask V O* Z’1: 3123150 ------- Ma*1mu nt Con ta dnant L.vel Compliance Is based on p nge/absence of total 1Iformj in sample, rather than on an *s mate of liform density. MCL for systems analyzing at least 40 sainples/month no more thait 5.0 percent of the monthly samples may be tots] coliform’posI ve. ) MCI. for systems analyzing lees than 40 sample/month no mote than Isample/ month may be total likmupceIUv.. Monitoring Req i1r’meth for TOW CoI1f. . Each cw tar system must sample ac rding to a written sample sldng plan. Plani are subject to state review and revision. The state must establish a pr u which ensures the adequacy of the sample siting plan for each system. Monthly monitoring reçaliementa are based on populaticit served (see Table 11). A system must ebliect a set of repeat samples for each total colikrm-posltlv. routine sample (see Table 10) and have It analyzed far total liforms. At least one repeat sample mustbe fr im the same tap as th.C4IIISI sampleotherrepeatsamplesmustbe coflected from within five service connections both upatesant and downs eant of the original sample. The system must coliect an repeat samples wIthin 24 howe of being notified c i the original àult, cspt whets the state waive ds requirement on a ces&by ceae basiL Iftotei collforms are detected in any repeat sample, th. system must coflect an ther set of repeat sample, U before, wiless the MCI. has been violated and the system liii notified the state (In which ce ,, the state may reduce or eliminate th. repeat sampling requirement icr the remainder of th..month). Va system which coflecte fewer nfivemutineumples/monthdetects total collfcrm. In any routin, or repeat sample (and the sample Is not Invalidated by the state), It must coflect a set of five routine samples the i month the system prOvides wa to the public, eccept that th. state may waive this requirement If C I) It performs a site visit to evaluate the contamination problem, or a) Ithu determined why the sample was toW collfomt .pos ltiv. and (a) esplalni this couiduslcui in wrItht (b) obtains the signature of the supervisor ci the state cMdal who draws this conduslcn, Cd makes the documentation avaflable to A and the publi and ( requires th. system to collect at least on. sample wider outain drcumstance des tbed In the nile. Unfiltered surface water systems, or systems wing wintered gc and water wtdar the direct influence of surface water, must analyze one collfcrm sample each day the turbidity of the source wa ecceeds 1 N’ IU. Tables 10aM 11 summariz. the routine and repeat sample monitoring requlrsmrtta for total collform.. OMfli ------- Iable ii- Total CoW arm Sampling Requfrements According to Population Served Minimum No. of Minimum No. of Population Routine Sample. Population Routine Samples Served Per Month’ Served Per Month 2 StD 10002 I I 59 , 0OIto 70.000 70 1 , 0 0l t o 2500 2 70,0Olto WOO $0 2.501 t o 3,300 3 WOlto 96,000 90 3.301 t o 4100 4 %OOIto 130000 100 4 ,101 to 4,900 5 130,001 to flO . 0O0 120 4,901 to 5800 6 320,001 to 320,000 150 3,801 to 6,700 7 320,001 to 450,000 180 6.701 to 7.600 $ 450,001 to 600,000 210 7.601 to 8,500 9 600,001 to 780,000 240 8,501 to 12,900 10 780,001 to 970,000 12,901 to 17,200 15 970,001 to 1,130,000 300 17,201 to 21,500 20 1,130,001 to 1,520,000 330 21,501 to 25,000 25 1,520,001 to 1,850000 360 25.001 33,000 30 1,830,001 to 2V0 ,000 390 33.001 to 41,000 40 2270,001 to 3,020.000 420 41.001 to 50000 30 3,020.001 to 3,960,000 430 30,001 to 59,000 60 3 .960,001 or mute 410 ‘ In lieu of the frequency epedfied. a No wtltyWster System C’4CWS) using ground water and serving 1,000 persons or fewer may monitor at a lesser frequency sp.dfied by the state wttil a unitary survey Is nductsd and reviewed by the state. Thereafter, NCWS. using ground water and serving 1000 persons or fewer must must monitor In each calendar quarter during which thuystem provides water to th. public. wUess the state deterudries that some other frequency Is more appropriate and no fies the system (In writing). Piveysari afterpromulgatlon,NCWS uslnggrowtd water arid serving 1,000 persons or fewer must monitor at lust once/ysar. A NCWS using surface wa , or ground wa wider U direct Wluence of surface water, regardless of the number of persons served, must monI at the same equency as a Uke .s!rad Ccsnmwdty Water System (CWS). A NCWS using ground water arid serving more than 1 ,000psrsoms during any month must monitor at the same frequency $1 a likeliZid CWS, tcspt that the state may reduce the madtorIz g frequency far any month the system vau 1000 persons or bw. $ Indudes public water sys s which hews at lust 15 servIce iec ons, but j fewer than 23 sons. • For .cm seMg 254 .000 persons, the state may reduce this sampling frequency, Vs unitary survey conducted In the last v. years IndIa that the water system I supplied solely by a protected ground.water xce and Is be. of sanitary defe However, In no se may the state reduce the frequency to less than once/quarter . sa rrs 3/23/CS ------- Table 12 Monitoring and Repeat Sample Prequency After a Total Colifo m.PosItlve Routine Sample I o. routine o repeat its TQ1 tIXte L samples/month sampled samples nut utonthi 1/mo or fewer 4 S/mo 2/mo 3 5/mo 3/ w a S 5/mo 4/mo 3 5/ 1 1 0 5/mo orgrestar 3 Table 11 Number of repeat samples in the same month for eadt iota] t.positlve routine sample * Except where sate has Invalidated the odglriai routine ump]e or where state substitutes an onilt. evaluation of the problem, or where the state waives the requfrewent on a cu.by- se bests hwalldation of Total CoIIfo Positive Samples AU total liform.pcsItive samples cmmt to onmpl lanos lcu ]stiona, cept for thaw samples whidi are Inva]Idatad by the stat. lnvafldaied samples do not aunt toward the minimum moidtoring freq *rq. A state may Invalidate a sample ordyl CI) the analytial laboratory adcrowledges th Improper sample analysis caused ths positive result ) the system determine, that the ntaii In*ttmi lea doni e Mh i i411t?1huPfrmevttM?t 1u1Ithlfi h1.m n MW basis that any rsp.atsaznple taken at the se ine taputh original total coliforut-positive sample Is total coUfarm osttive 1 butaUn *atukutnearbvuccationaari w r ruormnegadvs or D) the state )iu aubstand*3 giow & to llee that a io collform”posltive result 1. due to some drcumatanos or ndItion not related to ti* quality c(drlzildng water lit the distribution system, V(s) this Judgment is ecplalned to writing, (b) the document Is signed by thssupeMsorcf theitateoMdal who draws this omduslon, and (c) the documentation Is mad. avaflable to A and the pubk Variances and bemption none aflowed D fl 3/231 ------- Sanitary Surveys P.TIO U Iy SUTVlyS are required for fl systems coflec ng fewer than 5 samp’es I month, ac rding to the schedule In Table 13: TabIel3 Sanitary Survey Frequency for Public Water Systems Collecting Fewer Than Five SamplestMonth . . ‘ ‘. .. -InlUalS arvey :. kequencyof s stem’r7p. -Compkt.4 Subsequent Surveys Ccuwtw ty wa S years after pvonu1lga on every 5 years Nonu mmunIty water 10 years after pr muinuon every 5 years’ Iys For a noit mntwdty water system which uses protected and disInfected growid water, th. sanitary survey maybe repeat delievery ten years Instead of every five years . Fe i colllormslE. coUj Hetexoteophic lacteda G O If arty routhts or repeat sample I. total c Worm-pcsl ve, the system must analyze that tote] Worm.posIdve culture to determine If f. 3 Iiforrns are present. The system may test forE. all in lieu of feal alhforme. If feosi coWorms orE. all are detected, the system must notify the stat. before the rid ofsamebustheu day. or, If detected after the dose of business for the state, by the end of the i business day. 11 any repeat sample Ii fecal cOliform- orE. oslI”posltive, or If a feca] coliform- or E. ali pcsIth e original sample Is followed by a total collform.pos!tive repeat sample, and the original toW collform-posltive sample Is not Invalidated, the system Is lit violation of the MCL for total allforms. 11th Is an agate violation .1 the Ma. for total coliforuti. Tb. state has the dhseetion to allow a water system, on a case-by-cas, basis, to forp fecal coliform or E. all thtg on total collfoiut.posNv. samples, If the system eate every toW osliform.posltive sample as If It contained ( scsi coliforms, Li,, th. system compli. with all sections of the rule which appiy when a sample Is (scsi coliform- positive. State Invalidation of the routine total alIfcs pos1tiv. sample Invalidates subsequent ( scsi coflform orE. coti posIdve resulte on the sama sample 5 O ” s 3123110 ------- *tero cphlc bacteria can Interfere with total coliform analysis. Therefore, if the total collforTn sample produces: CI)s turbid culture In the of gas production using the Multiple Tube Permentation (MTF) Technique; U) a turbid culture In the absenee of an acid reaction using the Prew Absei ce (P•A) Coliform Test or (3) confluent growth oricolony number that is “too numerous to ccwtt5asing the Membw e Filter (}v ) Technique, the sample is Invalid (unless total coilforma are detectedjnwbdch cue, the sample Is valid). The system must collect another sample withIn 24 hours of being notified of the result from the same location as the original sample and have It analyzed fgr total coliforms. b such cases. EPA recommends using medIa less prone to Interference from )i.tarotrop)dc bacteria for analysing the replacement sample. Analytical Methodology Total coliform analyse are tobe conducted using the 1O tube MTPT.du 1qus. the hW Ted n1que,the?.ACol1formTest,ortheMI1dmal Media ONPC.MUG Test CAutosnalysls Colilert System). The system may also use the 5.tube ).ffF T.diidque (20mm) sample portions) or a single culture bottle containing the M l ’ ? medium, as long as a 100 ’ml water sample Is used In the analysis. A 100mm) standard sample volume must be used In analysing for total cobforma, regardless .1 the analytical method wed. Dasnz 3/2311 ------- IAL US: PROPOSED NATIONAL PRIMARY DRINKING WATER REGULATIONS ANPRM.Octobsrl,1983(487R45302) Proposed MCLGI • November 13,1985 0 FR 46936) Raprcposed MCLG. and proposed MQ. and sa ent tedmiqu. rsqulremente. August 18, 1981 (53 FR 31116) Fthil rule expected • Fafl 1990. Proposed M .Gs and MQa MCL measured as wa leavee the ea ent plant or enters the dlatibudoi sys i . M .. and MaC. for Lead and copper . . Qiemical - . -. Ex .tbig Ma ?. Proposed Proposed M G Laid &CSmg/l 1005mg/I 0 Copper lag/P Uu g11 13mg/I Proposed Treatatent Technique Corrosion con cI sato snt to mlnirnla lead at the tap and public odua at C. ssL.n Con el Trjigezed Wh Lead level average exceed. 1010 mg/i ( euwud In morning a ,t draw, or If lead sSTVI Ibise are ust pleent. bt. measured overnight standing service line sample, averaged woss boiasee, In targeted sampling of)4I u .k lo ons) or, pHofn.than5% simp1os 1eNthinI0Oi. Coppermnmon thans%ofsamplosexcssdsl3agFL Public £ UonTdggszsd Wk Ludlevelaverageexcssds.OlOag/lor. Lead levels In u te than 5%.l targeted samplos exceed Or w.g/L ________ SPArTa 31231C1 ------- [ Phase fl. 38 InorganIc and Synthetic Organic Chemicals I MWRM • October 3,1983(48 FR 43302) Proposed MCLG.- November 13,198500 FR 46936) Repropo ed MCLCa, proposed MCI. and monitoring requfremente. May 2Z 1989 54FR 22062 ) a . public uwient period. August 21,1989 Projected pr inulg.don . Ds iber 1990. Summary of the Proposed Rulemaldng The May 1989 proposed n naidztg reçaeste commente on MCLG and MCL for 30 syrtthetIcocheml ii (SOC.) and eight hicrpidc d eml Ia ØOCs) CTable 5). The proposed n]ernaidng also indudse monitoring, rsportlng, and public notlfiostlon requfremente far the SOC. and lOCs. Par two dnante, epichiorohydrin and. a ylarnide, EPA proposes a eato ant teduilçre requirement In lieu of an MC I. end monitoring reçdr.m.nte. In addI an. the Notla also proposes BAT upon which th MCLa e based and BAT for th. purpose of Issuing variances. Lastly, the proposal contains SMCLs fcrrdne contarnlnane and mon grequiremeitta for app n ataly 110 addItional “unregulated’ co ndnante. Upon publiostion of final regulations, the newmortngrequlremente would be effective within 30 davitheMCLs and MCIIG . would be effective 11 months if final publication. Monitoring Requliementa Inorgardos Barium, Cadmium, O romlun ,Mercuiy, Selenium CUZTSfltl7, an comoiurdty pound water systems must monitor far Inorganic contaidnante every three years. Surfios water system. must monitor annually. EPA proposes to retain these basic reçdrsmenta. The major changes EPA proposes to the current rsçdrementa are to expand the requirements to ncn ans1ent system. and to allow morJtorlng at up to ten.y.ar Intervals after the system completes three rounds of sempling which Show that the water coniisten6y meets the MCLa, Nl ateftIltaIte Under present EPA regulations, an couimwUty ground water system. must mord every three years; community surfaos water system. must monitor annually. Non. ansIenf and ans1ent systems must monitor it the dlsaedom of the state. a DW 3 312311C ------- Because ahtltrite tan 1Mdon is ass ated with an acute hethh effect (metheu%OglobInemIa), A proposes to lnaeue jtorIitg frsquutc for mnnmity and Nort.Trannent Non .Commwdty O tfliiej systems to annuaily for ground water systems and çaartsrlylor.urfaos waterlystems. Co unity and F .’ C ground water systems must monitor quarterly U four neecu ve samples are greater than 50% of the MCL (5zng/LforrJ at. or 03 mg/L forni w);a community or INC surfaos water system may decease Ito monitoring frequency to annually U four con .ecud e samples are la s . than % of the MCI . ineient Itoncommwuty ground wa a ’stems must monitor rny three years; those served by surfios wa must onos eve y year. AU wa systems w wt monitor it the me of ldghest vulnerability. Aproposes torequfre c don. aneImttsystema bmcnltor for ubestos, If a state vulnerability asseument determines that the system is vulnerable to contan Iria on from tM water sowos or osrrosisn of aabest nisnt pip .. Vulnerable a i.ems have five ye the ruiesar.prcmulgaled mplete monitoring. Vulnerable swfaor wa systems must take repeat samples wiually ground water systems must take repeat samples every three years. Non .vu]nsrable systems are rot esqufred to monitor. Volatile Organ!. E’Aestabliihedmo Itodngrt remerttofcrs1g)tmivritobt19 . Thaserequfremans require commwdfy and nor’- ‘aneIent systems to monitor quarierly for one year. Repeat sampling frequendes :eçdr .msnto depend on detscdOn of cantan Inanto and th. resulto of a vulnerability aueumsn Ibe May 19S9 proposal would add 10 idditional contaminanto to the list oil solvanto previously regulated by A In 19S7. Pesticides I Herbicides lP Oarrendy, commwdty surfa water systems must monitor every three years for sIn psstiddes pesticide monitoring for ground water systems Is at stat. discetiom. A proposes new monitoring r.qulrem.nto for S cmant)y regulated aM 13 addl aia1 pestiddes/kerblddes/PCBS (vsdithwlilddscwrentiyregul&Wd Is not Included In th May proposaD. Con mwdty and ion.teanslantwatorsystems must monitor Utke stats determines they are vulnerable to couttandnetiost based upon en auessmant Systems found ‘ iot vulnsra a,e not required tomoidtor. Systems determined as vulnerable must monitor quarterly Ice one year. l .a sample must be taken at the time of the quitter the s item is t vulnerable Repeat sampling frequencies vary based on system slse arid wbather pvAd IssftdaIdds/P s are d* Water TIea ent em1als Aaylanilde and ipiddorobydrin are primarily used In flocoulatits during wa to 4.ceaae turbidity. A proposes utoient Ieduilque requirements which limit the ccnom a csi of saylaridde and pIdilorol ydrb In polymers and the dose. Systems must annually certify to the sate d st the ulre4 levels are mat - osar’r 31UI ------- Unregulated Contaminants EPA proposes to bli oprioritylistso znlnaitte. Mortitoririg for the 29 priority II contan 1iw ts is dependent upon a a ate vulnerability assessment. Monitoring for the 84 priorIty 12 contaminants Is at state dlwedon. Best Anilále Technology EPA his Id.ntl ed BAT to remove ead contaminantlisted. Table 16 lIsts the proposed BAT for sadi contanilnartL Systems om use BAT to amply with the MC.. and/or qualify for a vulanc.. Variances and Ezempdor A state with primary &orcement authority may issue i variance If It determines that a system cennot comply with art MC I. despite appliatlon of BAT EPA or a state may not Issue a variance or .xempdon If an unreasonable risk to health edsts. EPA will at a Iaterdateprovideguldanceo wto determine the iweasortabla risk tohealth levels for eadi ccettantlnanL Before grantlng a variance or .mpdon, EPA or the state cen requir. public water systems to provide YOU devices, bottled water, or other means to reduce exposure below rmreuonabhe risk to health valiau. State IniplemeritsUon ‘ The proposal dual be ew reguladons and other procediwu/polIde the states must. adopt to Implement the proposed rule. Thee tnclude State Primacy RequItessenb Vulnerability auessment procedures. Procedures to reduce system mcid rIng frequend.. State Recor .ep1ng Requkemeata ‘ Vubierabillty emessniants. Aa’ytandd. and .plddoiohydrbi certl c. ons Reduced monitoring frequency wianc. lattars from emafl systems available for monitoring. MATh 3123110 ------- State Iteporting Requh,aisn Uat of sys ’ wh1d have (1)a vulnerability U$WU% fl Q) the state ?educ,d monltcrlng f eçaendes, (3) car fiid mp1lsna with a ylamld. and .plctdorohydrln. and (4) s s s avaflabla for u on1torb%g. Rasulte of ww.gulated nten lnarit mord rüig. 1 bleU Proposed National Pzlniáxy Drlnldng WatàRegulations S :r for 38 InorganIc and Synthetic Organic Contamina nts :‘ ; ( 1D 1ao Asb s 7 L’ — Rartum 5 1 5 Cad th t 1005 om 1005 0 .1 105 0.1 — 0 0 NI ate 2 10 10 10 I — I Selonh 105 0.01 0.05 — oa $ Volatile Organis 04 04 d42.D lddoroethylarls 0. 0W 13.DId lorosthylsM 0* 01 1.2..Vlddoicprcpane 0 0005 0, 0.7 MOflOOUOIO 0.1 0 1 StyMie 0,11 0.00510.1 T. ad i3oroethy1uis 0 1005 Tolu s 2 2 XyIan. 10 10 Cssrd Nat Pip $IAflz 3 12 )1 10 ------- Table is (Cont’d Proposed National Priu aiy Drinking Water Regulations for 38 Inorganic and Synthetic Organic Contaminants Contandnwt Piop.. MCLG CuT ent MCI Prop. MC (nfl) (m I) (mgFl) Pesticides iPCBS Aladilor 0 0.002 A1dI zb 0.01 0.01 Aldlcarbaulfoxlds 101 0.01 Aldi c arbaulfone 0.04 0.04 A a ne 0.005 0.005 Carbolw’an 0.04 0.04 Odordane 0 — 0.002 0.07 0.1 0.07 Dlbrontochlorcpropane 0 — 0.0002 Ethylene dlbmn 1de 0 0.00005. Heptachior 0 — 0.0004 Heptachlor .po dde 0 — 0.0002 Undane 0.0002 0.004 0.0002 Methoxychlor 04 0.1 04 PC!. 0 0.0005 Pentach]ovopnsno l 0.2 — 0.2 bxaphene 0 0.005 .0.005 47(Sflv ) 0.05 0.01 0.05 Water Tieath ent OlemIG1s Aaylan I d s 0 EpIch1orc ydrtn 0 I WI. s ?vflUIon flWrs p Uter 1ong than 10 a Th.MCLC and MCLfor total W ate and *d Ite I .i0a g/1 (uN) $ sl.ted u primary ftgula cm proposed as se ndaiy ‘ IT • u ent technique requireniant D Z i 31231 ------- Table 16 Proposed Best Available Technologies (BAT) for 38 Inorganic and Synthetic Organic Contamii ants I C amui,itt ( Proposed BAT cs Aabse s CIP DF; D?.W Ba ISIRO Csdnthat ROC/P;LS Oimnth CIP; LS; RO Mera y CA LsC/P;ROPAC Nivaw RO Niui 10 Selerdimt AALSC/P.R0 O’Jote C/P and LS not proposed for small s stema icving $00 people cr less.) Volatile Otgania AD VOC. TTA, GAC Pesffddes I P S AD P.s$ddss / P a CAC Water Trea ient Oi.mlosla Aaylandde PAP Ep lchlotohydzin PAP kit Available T.d no1o ’ Xy AA - Ac vat.d Alumbw C/P - Coagula ori I FljtrationCC PAC • Powdered Ac vsted Carbozt CAC • Granular Ac vated Carbon m - Ion Exchange; iS - Urne $oftesith 10. Reverse mos1i PTA • Packed Tower Amradoz PAP s Polymer AddI on Pra as mans 3/231 50 ------- National Secondary DrisUdng Water Reg i1atloni In addition the National Prl nary Drin3dng Water Rig Wations proposed for the 38 lOCa and SOCs on May 22 . 1989, nine National Secondary Drin3dz g Water RegWadons were proposed. Table 17 Ustt the SMCLs proposed on May22, 1989. Table L.1e M ’ .J ,- auor genW e p.DIddorobr Ethylbenz ie ‘entachloivpheio l Ie n 1 L J . __4_ S — — _S_ IbilisM Xyluie 0.05 v g/1 0.01 5 gfl 0.00$ mgFl 0.0$ tg/1 0.0$ g/1 oa a gfl 0.01 wgfl 0.04I gIl 0 . w gI1 3’ DM17t 3/231% ------- SCHEDULED NATIONAL PRIMARY DRINKING WATER REGULATIONS (To be proposed) bli oito the Node of Pmpo Id Rul ta1dr g In the Fdsral Rqist I1 pr enUy sch,’àuled for June 1990. C t’d Nat Pip Schedule .. ‘s. • £RW E Tentative MCLG., MCLi and Ca éInogenicity : :_: : Inozganlc O e i Is • . &; :i4 MO. ’. M Cardno$exddty ntaabIa2d ‘ ‘ .c (aiglfl 1 s F CusL9caUon I An n o, y NI&,1 SI1us ThaWunt 0.005 0 02 400 0.01 /0005. 0.001 02 0.1 400 D D D D • A pvcposas two MCL based upon PQL of five Zias the }. L or i i. the ) L • A has dasilfied nickel lit Group A. huntait wdriogsn. based upon kt)ialation data. Hrwevc A Is r.gulath g nickel for drIzddr g wa pirpoasulfItw.rohtGroupD. 4 ncsU reIsno.vldencsofan rfr — ouw IPAF?s 3/23/50 ------- Table 1$ Cont’d M LG M . Csrclnogenldty [ Contan inant ( m g i ) Oauification O?gszdc Otemlcsls Da1apon 0.2 02 D KsthythexyDadIpate 0.5 0 .5 C D1(ethyUDhth late 0 0.004 52 Dfchlcromeths1te 0 0.005 52 Dfrios.b 0.007 0.007 D Diquat om 0 . D Endothafl 0.1 01 D 0 .0w 0 .0 D C1yph a t e 0.7 0.7 D Nexacldorobenwie 0 0.001 12 florocydopentedl w 0.05 0.05 D O camy1 (vydate) 0.2 02 5 PANs Ilenzo(a)pyrene3 sO o.oo 12 Pldóram 03 0.5 D Sima n 0.001 0.001 C 1 .2,4T?iddolobsneale 1,12.T?lchlolvethaM 0.003 0.005 C 23$T D 0 $ 1O$ 12 A us c propcs establishment of MCLG and MCI. for six addi onal PANs riaulf led as 12, probable human cardnogeni: benz(a)anthracene, benzob)fluorutthene,benz fluoranthete, chniene, d1benz(a h)vtthracene, and Indenopyan.. Schedule ‘ on of theNotke a osedRulema3dn th the7derat Regfster Is presen , ith .duled for Januaiy 199L Scope The NPRM expected prop . MCLCi MCIi SA7 for .et ng MCL and as td1doits farre Ivfxtgvaziances, other afterli forre gvarfancesar d a ptioi a, and mogrer kthgn ado dj . 6,m. 5,nat wal uranium, and beta parade and pltolon emitters. The pr pusal will also nslder an MC II for alpha emitters and the measurement of gras alpha i s a sceerdng level for the regulated alpha emk . . SMflz 3/Z3FCD ------- MCLGg: Health Effects All radionucildes considered lit this proposai haVe been determined to be Group A. Imowit human wdncgens . Therefore, the MCLC for each radionuclide will be proposed as zero. For uraithant , the it ncancirendpolnts of toxldty are also of concern. Natural tranlwn (non.cariar effecte)— Based on physiological parameters for adulta, ODW has estimated that a level of 40 pCI/L Is protective of uraniums cherrtoto dc Pologicalpametersforddldrenutlghtbeusedtoderivea value of 20 pCI/I. This Issue Is not yet resolved. (caitcir eff uantitstive estimates of the lung canar risks front radon volatilized fr ut drinking water were derived front the BI IV and IRCP 50 reports. The 10 and W lifetime risk rang. of 2 to 200 pOlL represents the arithmetic mean of adjusted 1 N and I P 50 estima . Risk of stomach tomors front Ingeston of radon are expected to be ntuch lower than the risk from Inhaled radon and are not Iit 1uded in this risk estimate. An estimate of stomadt cazt risk Is being generated. Uranium and radlwn(cancsr effects)- Quantidve estiuTh of the lifetime risks front exposure to these elements are derived tising the Radrisk model, a modification of the I P methodolo ’. The 1011 levels for the different isotopes of these elements are similar, ranging from 20 to 40 pO/l. The IlERlVwnndttse derived similar cancir risk estimates for these elements based cit the Inaeased Inddencs of wicar among radhmt workers. kt (canar effects) — No major changes from the ANPRM GI FR 34836). September 30,1986) are expected lit the canar risk esthna for bets and photon emitters. In late 1989, the B1 V committee Is expected to publish a report reevaluating the atom bomb survivor data Mjustatent to th. cancer estimates may then be appropriate. MCI . Agency Is considering options w)ildt fafl In the range 01200 to 2000 pCIF L (water). This range I . equivalent to 0. to 0.2 pOlL (air), assuming a ansfer ratio 01 10 ,0001 from aD of the water In the house Os.. showers, laundry. etc) ODW Is i examining the ts’ansfer ratio assumptions based on newer data. &dIiam, 6 and radh 8 — A separate MCI. may be proposed for each of these Isotope. For eadt botope MCI& under consideration canter on S pO/l.. Uranhmt —The range 0 IM ider consideration is 10 to4OpOFL . The ma to activity coitveislon factor lii drinking wa may be U vg/ O, based on Isotopic coricen adcms of itatwal uranium In dzthldng wa . Icta partld. and photolt entitkil —The 4 ivem MCI. wfll most likely be proposed aga lnw ltharequtforcontUlent oaM7z 3/23!5 ------- Qr guj1pbi The Agency Is aimsing the value of a alpha MCL and the use of a gross alpha v easuyenwnt as a Tnonitoring s een for regulated slphu. Some analysis Indicates that the current analybcal method for gross alpha Is not a good lndka toT of the ac vlty level of the total aiphas and that this method does not gIve an acceptable rrelatlon between gross alpha and the regulated alpha emitters. The Agency Is 1nves g4ng anotheT method forgrou alpha msuwrnent and may take couimente on the use of gross alphaatpropouL Monitoring Compliance likely will be proposed tobe determined on quarterly sample taken over on w. The primacy state, with concwrence from the A region. uay allow monitoring data collected within the last three ysare and that meet apedfic predsiort and acciwaq requireniente to aubs tute for quarterly samples. Vulnerability States would determine monitoring requiremente for beta parade end photon emltt based on vulnerability. Fa is thatshouldbe considered ars1)pvo dmltytoradioEtlve waste site, underground teth g , and fsdli involved with radlonudides (q , nudest power plant and other rea rs); 2) U th. water has been tested and found to have high levels of uranIun radon, or radhzm or 3) whether disdiarge monitoring thfornia on Is provided liii Available Technologies for M a Radon: Aea cst AQ ‘ Radlum.22& Ca cn ezdiange lime ,oftmiIn severs. osmosis bd1uu C 5 OI% exdtingi lime aø n1n reverse osmosis Tjrardunu Co a cst/1 a ori reverse osniosls anion chenge lime softening leta Reverse osmcsls Ian ecdtange (rnb.d be lest Available TechnOlogies for Variance Reveres osmosis and Ion clwtgs srelDuly tobelATfoumafl systems. Cosgula on/ sdon and lime softening may be ecduded as IA1 for variances, due to feasibility ns1dera ons for .mafl sys a DLbZh ------- Analytical Methods Radon; Liquid Sdn Ua on Counthtg, Lucas Cell Method Rad1wn226: Alpha Eniit ng Radium bo pes In Drinking Water (Method 903.0)Radlum226by Rado Emana onG4ethod 903.1); Radium.226(Method3O5);Total Radium (Method 300 RadIum. 8: Liquid Sdndllatlon Sdndlla on Cowtting(Method 904.1)’ Uranlunt Radlodismlcal 908) uorome lc Method (Method 908.1) Cross Alpha and Gross Beta Ac th3dngWa (Method 900)Gross Beta Parade A vItyG4ethod D4890) Gross aIphL Gross Alpha In Drinking Water by predpltadon • Methods presently under review. — Ithu not yet been deteru InsdUthIs method will be proposed method presently under Nv i eW. Tat 1979 ‘A established an Interim primary MC . for Total Trihalomethanes CTfl* (i) of 0.1 mg/I (44 FR 68624. November , 1979). Total Tl*.ls Include chloroform, bromoform, bromodlchloromethaite and A Is preparing a dIsbtfs oit Psa tett n ile for ground waters and a rule for disinfectanta and d l .ctlonby’producte. Proposal Isplanned for 1991. Promulga on lspla imedl 992 . Disinfectante sndby.producb were Included on Uw Drinking WaterPrlorltyUst ( FR 1892); Jaiwary V , 1988. 89 S5F?s 3123110 ------- A pvelimlrviy n pt paper Was presented it a public meeth g C2 December 4 1989. The key pointe of the preliminary ncept Piper are as follows: A) MCLa for the foliowing 1. Lead op on a. Total Wihalomethari (Tfl*ds) B. Haioacedc adds C. Oi]orln. dIo de, dUorfts, ddcrate d. Q’Jorbie and etilorawkie 2. Poten a] addona: a. Otloroplain B. Cyanogen ddoilde Hydrogen pero dde, bromate, lodite d. Formaldehyde 1) Set eata ent t.duilque requirementa or provide guidance for the foflowing 1. ).OC Cu a muTogite for mutagsnldty). 2. TotaIoxidi rig.ubstanc s ( ua. forcrgsrikpero ddesand spoddes). 3. Asslmiflable OrgmnIcCarboi (AOC)Cu a sweogate for m1 ob1olo 1 quality of o dd1z.d waters). 0 1. Segmented by the b*atment pro ad Case Table 19). 2. Reduce monitoring requliemarite to one per quarter at syatem d1saedom ce* r year at state isaeuon based on system Nitory. ) list last AvaflaWe Teôuio o 1. Piscweor removal 00% removal of .fo!uIa On potenthD a. CanveflUOtlal beataisni modlftcago.. b. Granular Ae vated Carbon up to 30 aiInu empty bed stta dma and S months seiineradcn GAC 11 Mt wdveially kuTol due to wa quality ndIUoi d. Menibrarias may Mt be BAT due to li of fUflscsie pertena. OPt.fl3/23,.I ------- 2. Alternate o odante: 1 . MsurningMCLC values are met for dlsWectante. b. Qilorine dio ode and chioTite residue removal and chioramines. C. Ozone plus chlorsmines. d. Tl f MCL of 25 ugh Is lowest that aflows coxtdnued use of free chlorine. 3. By.prdu rsmovsl a. AeradOn (maybe for earn.). b. GAC adsorpdóut (not for most lorinadaiby-produ ; ozone un1owwi ). C. R.dudng agente for ).OC. totel oxidlthtg substen , possibly chioroplain and cynaopn ddcdda. L R.dudng agente or free chlorine for hydrogen peroudda. S. Biornate and lodate — £ Caveat w me use with possible future need far postCAC ea snt for nuoD1ng AOC or removal of other by.produc by dsorpdón. L.sd opdoutsars 1. MCL.f rTr)*.11OfSOVg/LOT25V$/L 2. Other MCI. based out anel ies of feasibility ilmflar to TDDIIL IN QS I ii i eu 1 I cJAonilodns . . .j —a ___ —— - Haloscsdc Adds Tool Organic Hafldee C ?) Totel Otlof IN Residual TrHM.C?) Odoroplaln C T) OUoec athO) Cyanogsn Otloride CT) 1 I Osidising 5ubetanoss CT) Cyanogen Ododde Cl i Tool OUarsndzw ResIdual Cl) Tool OiddIsing Substar a) OilosIW lautne VIa de t) Fornvidáyd. (7) lodateC?) Hydrogen Peroudde (1) leomateC?) Tool OsidI ng Substan (7) 41 SSAFh 3123/SO ------- • Table 20 Summary of National Primary DrinIdng Water Regulations (as of April 1990) [ Conlantlngd. I [ M ’ 1 MWJ MI obIologlcal ContamIwt Coliforuia( thD 0 1/iC.3 J Ci dia Lamblia 0 TI’ I*c TI’ Zagiondfla 0 TI” Virus 0 TI’ T rb1dLty 1.5N Inoz aitIc Contaminants A nk 0.05 lartum I Cadm1 mt — 0 .0 10 — PluorId . 4.0 4.0 Liad — 005 — 10 Sel. dum 0.01 SUv 0.05 * lit utUlipams per litsr (mg/D wdes otherwise nctsd ‘ Ravls .dzegulations wlflbebased on pr enci/ab ci nceptnther than an ma of coliform density: eff.c vs Decimber 1990. $ 15 . 1 sathent Technique requirements etablislied bt us ia of Ma eff.c ve beginning December 1990 Revised reguIa ona wtU tabI1sh eatsient tsdirdque aIrem tts rather than anMCLfcrttwbldlty: effective b gDecember 1990. Csafd is N Pap DP.AF?: 3 123 1 10 ------- Tab). 20 C.nt’d Contaminss t I I Ma.G’ J 1 MCI.’ O?gazdc Contaminarste 2.4’D 0.1 0 .004 MethaxycWo ZU47Si1v Carbon ta addci de P•DkhI i.Dtcl%lom.u%yl.fl. 1,U Trtchkroethan. Vinyl &Jorld. Total aiomethar ( wofc mofu Radlonudidie Gross alpha psrtlde a vity Gross beta partide activity Ra4 U6 aM $ C taD o o .oos o o.oos W5 0.075 o 0 005 0.0 0 7 1007 030 020 o o .oos 0 10C2 0.10 1SPQI’ 4 auem/yr 5pa 0 fls 3IZ3IN ------- NATIONAL SECONDARY DRINKING WATER REGULATIONS Secondary Maid ,urn C nta tjnant Livels (SMCLs) are Federally noi ’enforceab1e and establish 1h lta for contawinante in drbtldng water which way affect the aesthetic qualities and the public’s acceptan of drlnldng water (e.g. taste and odor). Table 21. SMcLS; I ConL stahl J I level diloride 250 w g/1 color l5colorwdta _ 1wgfl rNiLv1ty mn. urr&islve fluoride 2.Ouig/l foawlngagertte O .5wg/l lion O3wg/1 wanganese O . mgIl odor pH 6.543 sulfate 250 tal dLesolv.d solids ( 1D ) 500 wgfl Smgfl Thee. levels spresant reasonable goals for drinking water quality. Th. states way establish higher or lower levels which way be appropriate dependent upon lood co one such as w avaDabU1ty ofalteritat. source waters or other co tpefl1ng fac rs and that public health and welfare is not adversely affected. It 1. vecowmended that systems monitorfor these contaminant. every three years. More frequatt monitoring far contawinarit. such as p)L lcr, odor or others way be MInpa .: ê i as’ .I!(&hl Mn. SMCLa for were proposed with the Inorganic and synthetic organic chemlosle In May 1989 (see page 34). Other secondary reguladorts way be proposed In the futtu as appropriate. 44 P .ATt: 3I23lI ------- APPENDIX 4: EXAMPLE UNDERGROUND INJECTION CONTROL (UIC) PROGRAM AUORNEY GENERAL’S STATEMENT 159 ------- UNDERGROUND INJECTION CONTROL (UIC) PROGRAM ATfORNEY GENERAL’S STATEMENT I hereby certify, pursuant to the provisions of Part C of the Safe Drinking Water Act (42 U.S.C. 300f et seq., as amended) and 40 CFR 145.23, that in my opinion the laws of the State of ( Name of State ) (laws of Name of Tribel provide adequate authority to apply for, assume and carry out the program set forth in the Program Description submitted by the ( State or State Agencies. if partial ’ [ Tribe or Tribal Agencies, if partial]). The specific authorities provided, which are contained in lawfully enacted statutes or promulgated regulations which will be in full force and effect on the date of approval of this program, include the following: 1. Prohibition of Unauthorized Injection Federal law prohibits any underground injection unless authorized by permit or rule (Section 142 1(b)(1)(A) of the Safe Drinking Water Act (SDWA) and 40 CFR 144.11). State or Tribal Statutory and Regulatory Authority By Permits: By Rules: By Class or Type: Remarks of Attorney General (Include effective date as applied to the program; must be effective by date of program approval. Explain how the above-cited prohibition applies by class of well and, where applicable, by type of well.) ‘Partial primacy means a Tribe may seek UIC primacy to regulate Class II wells or Class I, II, Ill, IV and V wells. There is no partial primacy in the PWSS program. 160 ------- 2. Prohibition of Endangering Drinking Water Sources a. State authority, which provides authorization of underground injection by permit, shall require that the applicant for a permit to inject must satisfy the State/Tribe that the underground injection will not endanger drinking water sources (Section 1421 (b)(1)(B)(i)). State Statutory and Regulatory Authority (Include class of well(s) and show that all waters meeting the Federal definition of drinking water sources will be protected.] Remarks of Attorney General b. The SDWA requires that a State/Tribal program, in the case of a program which provides for authorization by rule, include the prohibition that no rule may be promulgated which authorizes any underground injection which endangers drinking water sources within the meaning of Section 1421(d)(2) (Section 1421(b)(l)(B)(ii)). State Statutory arid Regulatory Authority Remarks of Attorney General 3. Prohibition of Movement of Fluid into a USDW a. The Federal program at 40 CFR 144.12 requires State/Tribal programs to prohibit any authorization of an underground injection by permit or rule, that causes or allows movement of fluid into a IJSDW (Underground Source of Drinking Water), for Class I, U or I II wells. State/Tribal Statutory and Regulatory Authority 161 ------- marks of the Attorney General b. For Class IV or V wells, the Federal program requires State/Tribal programs to prohibit any authorization by rule or permit that causes or allows movement of fluid containing any contvfliflaflt into underground sources of drinking water, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may otherwise adversely affect the health of persons (40 CFR 144.12). State/Tribal Statutory and Regulatory Authority Remarks of the Attorney General c. Corrective action must be imposed if any such movement is occurring from any Class I, II or m well (40 CFR 144.12 and 144.55) State/Tribal Statutory and Regulatory Authority Remarks of the Attorney General d. For Class V wells, the Director must take action in accordance with 40 CFR 144.12. State/Tribal Statutory and Regulatory Authorty Remarks of the Attorney General 4. Authority to Issue Permits or Rules The SDWA requires State/Tribal authority to issue permits or promulgate rules for underground injection not less stringent than regulations of the Environmental Protection Agency [ Section 1422(b)(l)(A)(i) and 40 CFR Parts 144, 145 and 146]. 162 ------- State/Tribal Statutory arid Regulatory Authority (1) By Permits, as applicable, by State/Tribal Agency (S 144.31) Class I Class II Class III Class IV Class V (2) By rule, as applicable, by State/Tribal Agency (S 144 as amended) (3) Area permits (S 144.33) (4) Emergency permits, if applicable (S 144.34) Remarks of Attorney General [ Include reference to other State/Tribal agencies if not a part of this Statement.] 5. Authority to Condition Authorized Injection Activities The SDWA requires State/Tribal authority to condition permits in accordance with conditions applicable to all permits (40 CFR 145.11, 144.51 and 144.52). [ Include process for establishing permit conditions for transfer, modification, and termination.] State Statutory and Regulatory Authority Remarks of Attorney General 6. Authority to Impose Compliance Evaluation Reluirements a. The SDWA requires the State/Tribe to have authority for entry in or onto a site or facility for the purpose of inspections (Section 1421(b)(1)(C) and 40 CFR 145.12). State/Tribal Statutory and Regulatory Authority 163 ------- Remarks of Attorney General [ Include comments on other investigations, record copying and procedures for insuring proper chain of custody of any records or samples.] b. The SDWA requires State/Tribal authority to conduct inspections of facilities and activities subject to the program, and authority to require permittees and persons subject to authorization by permit or rule to conduct facility monitoring and reporting requirements in the manner prescribed by the Director (Section 1421(b)(1)(C) and 40 CFR 146.13, 1456.23, and 146.33). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General c. The SDWA requires State/Tribal authority to require permittees and persons subject to the underground injection control regulations to keep all records and make all reports required by the Director (Section 142 1(b)(1)(C) and 40 CFR 144.51). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General [ Include record keeping by class of well; all application data, monitoring and other records (3 years); records on nature of fluids injected (5 years) from date of plugging and abandonment.] 7. Authority for Enforcement Requirements a. The State/Tribal agency must have authority to immediately restrain any persons from engaging in any unauthorized injection that is endangering or causing damage to public health or the environment (40 CFR 145.13). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General [ Include any other emergency response measures avail2ble to the State/Tribal Agency(s).] 164 ------- b. The State/Tribal agency must have authority to sue in court to abate any threatened or continuing violation of any program requirement or permit condition, without the necessity of prior revocation of a permit (40 CFR 145.13). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General c. The State/Tribal agency must have authority to assess or sue to recover civil penalties and to seek criminal remedies (40 CFR 145.13). (1) Civil penalties shall be recoverable in at least the amount of $2,500 per day. For Class II wells, if applicable, civil penalties shall be recoverable for any program violation m at least the amount of $1,000 per day. (2) Criminal fines shall be recoverable in at least the amount of $5,000 per day for willful violation. For Class II wells, if applicable, pipeline (production) severance shall be imposable against any person who willfully violates any program requirement. (Tribes are exempt from this requirement.) State/Tribal Statutory and Regulatory Authority Remarks of Attorney General (d) The State/Tribal Agency must have authority to assess or seek civil penalties that are appropriate to the violation (40 CFR 145.13). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General [ Include factors the State/Tribal agency will consider in any assessment.] e. The State/Tribe must provide for public participation in the State/Tribal enforcement process by providing either (1) authority that allows an interested party to intervene as a matter of right in any civil or administrative action (40 CFR 145.13), or (2) assurance that the State agency will follow the procedures of 40 CFR 145.13). 165 ------- State/Tribal Statutory and Regulatory Authority Remarks of Attorney General 8. Authority for Public Participation in Permit Processing The Federal program requires State/Tribal authority to allow for adequate public involvement and participation in permit processing, including draft permits (if applicable), public comment, public hearing (if applicable), and response to comments on the final permit (S 145.l1(a)(18) through (21)). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General 9. Authority to Apply Technical Criteria and Standards for the Contràl of Underground Injection not less stringent than 40 CFR Part 146 (Section 1421(aWfl and (b (lil. State/Tribal Statutory and Regulatory Authority Remarks of Attorney General 10. Classification of Injection Wells a. The State/Tribe must have the authority to regulate all classes and types of wells as required for an underground injection control program (Section 1421(a)(l) and (b)(l), and 40 CFR 144.6). State/Tribe Statutory and Regulatory Authority Remarks of Attorney General b. If the State/Tribal program is not applicable to one or more classes of injection wells because there are no such wells within the State/Tribe, the State/Tribe: (1) Must have the authority explicitly banning new injections for that class (classes) not covered by the State/Tribal program, g certify that such new injections cannot legally occur until the State/Tribe has developed an approved program for that class (classes) (40 CFR 142.2 1(d)), ans I 166 ------- (2) Must demonstrate that there are no underground injections for those one or more classes of wells within the State/Reservation. Reference should be made here in the Attorney General’s Statement to the section in the program description where the State/Tribe demonstrates that there are no underground injections within the State/Reservation for the one or more classes of injection wells as discussed in (1) above. State/Tribal Statutory and Regulatory Authority Remarks of Attorney General NOTE: The State/Tribe must submit a program to regulate both those classes of wells la own to be within the State/Reservation, Class IV wells (40 CFR 144.13, 144.14, 144.6(d)(2) and 145.21(d)). 11. Elimination of Certain Class IV Wells a. The State/Tribe must prohibit the construction of any Class IV well for the injection of hazardous waste directly into or above an underground source of drinking water (USDW) (40 CFR 144.13(a)(1)). b. The State/Tribe must prohibit the injection of a hazardous waste directly into or above a USDW through a Class IV well that was not in operation prior to July 24, 1989 (effective date of Part 146 pg. 42472) (40 CFR 144. 13(a)(2)). c. The State/Tribe must prohibit any increase in the amount of hazardous waste or change in the type of hazardous waste injected into a well injecting hazardous waste directly into or above a USDW (40 CFR 144. 13(a)(3)). d. The State/Tribe must prohibit the operation of any Class IV well injecting hazardous waste directly into or above a USDW after six (6) months following approval of any UIC program for the State/Tribe (40 CFR 145.11, 144.13(a)(4), and 144.14). e. The State/Tribe must require the owners or operators of hazardous waste management facilities and all generators of hazardous waste to comply with the requirements of Section 122.45 (40 CFR 144.14). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General 167 ------- 12. Ai thoritY to Identify Aquifers that are Underground Sources of Drinking Water LLISDW and to Exempt Certain Aquifers (40 CFR 145.1 1(a)(25), 144.7, and 145.22(0(8) and (9)). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General 13. Authority Over Federal Agencies and Persons Operating on Federally Owned or Leased Property The SDWA requires that the State/Tribal program must apply to underground injection by Federal agencies and to any underground injection by any other person whether or not occurring on property leased or owned by the United States (Sections 142 1(b)(1)(D) and 1447(b)). State Statutory and Regulatory Authority Remarks of Attorney General 14. State Authority over Indian Lands (not applicable to Tribes) When the State asserts authority over activities on Indian lands, the State authority must demonstrate it is able to regulate those activities within the State, and give an appropriate analysis of the State Authority (S 145.23). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General 15. Authority to Revise State/Tribal Underground Injection Control Programs (Section 1422(b)(1)(B) and 40 CFR 145.32). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General 16. Authority to make and keep Records and make Reports on its Program Activities. all as prescribed by the Environmental Protection Agency (Section 1422(b)(l)(A)(ü), 40 CFR 144.8, 145.14, and 145.24). 168 ------- 17. The State/Tribe must have authority to make available to EPA upon request. without restriction, any information obtained or used in the administration of the State/Tribal program. including information claimed by permit applicants as confidential (40 CFR 145.14). State/Tribal Statutory and Regulatory Authority Remarks of Attorney General 18. Certification of Status as Independent Legal Counsel (To be used if State/Tribal agency counsel has prepared the statement.) The undersigned attorney(s) does (do) hereby certify that pursuant to ( State/Tribal law citation ) and other laws of the State/Tribe of ( Name State/Tribe , he/she is counsel for the ( State/Tribal agency(s)) , having full legal authority to independently represent said ( department. agency. board. etc. ) in court in all matters pertaining to the State/Tribal program described herein within the terms and conditions of 40 CFR 145.23. 19. Signature of the Attorney General or Independent Legal Counsel 169 ------- APPENDIX 5: TYPICAL OR SUGGESTED TRIBAL STATEMENTS IN APPLICATIONS 171 ------- PROPOSAL FOR “TREATMENT AS A STATE” OF THE STANDING ROCK SIOUX TRIBE The introductOry paragraph proposes that the EPA treat the Tribe as a state. The paragraph briefly describes the contents of the application and the justification for an affirmative response from EPA. I. The Tribe is Recognized This section states that the Tribe is recognized by the Secretary of the Interior by being on the list of recognized Tribes and describes other factors supporting the Tribe’s recognition, including the Tribal constitution, treaties and support of the Tribe by the US Congress. II. The Tribe Carries Out Substantial Governmental Powers Within Its Reservation Boundaries A. Form of Tribal Government 1. Legislature The Tribal Council is the legislative branch of the government. This section describes how the members and officers of the Council are elected and the length of their terms. 2. Executive The Tribal Chairperson is the Chief Executive Officer. The responsibilities and duties could be described in this section or could be referenced in another document, such as the Tribal Code. B. Important Governmental Functions The introductory paragraph describes the Tribe’s concerns for the welfare of the people and its commitment to assistance. 172 ------- 1. ibal Court Authority for Child Protection This function is described in this section. 2. Tribal Council Regulation of Alcohol Sales on the Reservation This function is described in this section. 3. Council Oversight of the Tribal Alcohol and Substance Abuse Program This function is described in this section. 4. Council Oversight of Tribal Health and Welfare Programs These functions are described in this section. 5. Land Use. Water Use and Natural Resources These functions and programs are described in this section. 6. Tribal Taxes The Tribe levies two taxes: The Tribal Employment Right Organization (TERO) Tax, and the Privilege of Doing Business Tax. These taxes and the revenue generated are described in this section. ilL The Tribal Government Possesses the Jurisdiction to Regulate the Public Water Systems on the Standing Rock Indian Reservation A. Area Over Which the Tribe Asserts Jurisdiction This section contains a legal description of the area. A map showing the area is also acceptable. B. The Basis for the Tribe’s Jurisdictional Assertion This section describes the basis for the assertion or it could refer to a separate statement by the Tribe’s General Counsel or Attorney General. 173 ------- C. Public Water Systems Which the Tribe PropoSeS to Regu This section describes the local water systems in the Indian communities on the reservation served by the Tribal water utility, the Standing Rock Water and Sewer Company. The Tribe also proposes to regulate municipal water companies serving towns within the exterior boundaries of the reservation. This section describes the situation and contains a justification for the proposal. IV. The Tribe is Capable of Administering an Effective Public Water System This section describes the Tribe’s capabilities by describing the wide variety of programs administered by the Tribe and the Tribe’s successes in working with all types of officials in various types of situations. A. Tribal Management Experience in the Area of Health and Nutrition The Tribe’s experience in these areas is described in this section. B. Tribal Management of Other Federal Programs This section describes Tribal management of Community Block Grants, contracts with the Department of Human and Health Services (DHHS), Job Training Partnership Act Administration, and Project Head Start. The difficulties managing these programs on a reservation are described and the Tribe’s solutions, sensitivity and ability are also included. C. Tribal Management Experience in the Areas of Natural Resources and Wildlife This section describes the Tribe’s activities in this area, including the following: 1. Standing Rock Game, Fish and Recreation 2. Water and Natural Resources 174 ------- D. Thbal Public Health Programs This section lists the public health programs administered by the Tribe and refers to an attachment for details and related Tribal policies. 1. Alcohol and Substance Abuse 2. Community Health Representatives 3. Food Distribution 4. Health Education 5. Nutrition for the Elderly 6. Tribal Health Administration 7. Tuberculosis Control Program 8. Women, Infants and Children E. Tribal Finance This section refers to a separate attachment for the Tribal Finance Office Procedures. F. Entities Exercising the Executive. Legislative and Judicial Functions 1. Executive This section describes the functions of the Tribe’s Chief Executive Officer and the other officers. 2. Legislature This section describes the functions of the Tribal Council and the authority conferred by the Tribal Constitution. Tribal Committees are also described. 3. Judiciary This section describes the Tribal Courts, the authority described by the Tribal Constitution, and the procedure for filling positions for judges. 175 ------- G. Proposed Regulatory Agency This section recognizes that this agency does not exist at this time and could be formed under a future development grant. The Tribe indicates its thoughts regarding how this agency might be formed. An Environmental Protection Board could be formed as a separate corporation chartered under Tribal law, by authorization of the Tribal Council but otherwise independent of the Tribe. The Tribe’s water utility agency, the Standing Rock Water and Sewer Company, is also an independent corporation chartered under Tribal law. The Tribe recognizes the need to eliminate conflicts of interest between the regulator of the public water system and the owner of the system. A Tribe could illustrate this separation by the use of a Tribal organizational chart. H. Technical and Administrative Capabilities of the Staff This section describes the education and experience of the staff. I. Conclusion This section summarizes and justifies the Tribe’s application and request. ATTACHMENTS A. Statement of Tribal General Counsel B. Tribal Public Health Programs C. Tribal Finance Office Procedures 176 ------- SAFE DRINKING WATER ACT PUBLIC WATER SYSTEM SUPERVISION PROGRAM DEVELOPMENT GRANT APPLICATION STANDING ROCK SIOUX TRIBE I. Introduction A. Standing Rock Drinking Water Quality Assessment Project This section describes the response of the Tribe to a complaint by reservation residents regarding the quality of their drinking water. The Tribe worked with the State, EPA, IRS and officials of the Tribe’s water utility to resolve this problem. B. Standing Rock Municipal. RuraLand Industrial Water Project This section describes a Tribal project to construct a rural water system. C. Safe Drinking Water Act Program Development on the Standing Rock Indian Reservation This section describes the development of the SDWA program by the Tribe on the reservation. The Tribe indicates the amount of EPA funds needed in a development grant to develop the SDWA program on the reservation. II. Objectives The Tribe indicates in this section that it needs an EPA development grant to partially fund the development of technical and administrative mechanisms for primary enforcement responsibility (pnma y) over the public water systems on the reservation. The following objectives are listed: A. Establish and maintain an inventory of public water systems. B. Adopt Tribal drinking water standards that are no less stringent than national primary drinking water standards. C. Establish a Tribal Environmental Protection Board and develop administrative procedures for enforcing drinking water quality standards and regulations. D. Systemize the testing and analysis and monitoring procedures. 177 ------- E. Develop and implement public notification procedures and consider public comment in program decision making. F. Establish design and construction standards for new or substantially modified public water systems. G. Establish procedures for variances. H. Develop a plan for provision of safe drinking water during emergencies. I. Develop comprehensive record keeping and reporting systems. I. Establish procedures for enforcing Tribal drinking water quality regulations. K. Schedule a quarterly review and annual evaluation of program development. L. Demonstrate capability to administer the program effectively. ifi. Scope of Work In this section the Tribe describes the work to be performed under each outline heading to achieve their development grant objectives. A. Establish and Maintain an Inventory of Public Water Systems 1. Establish information base 2. Laboratory facilities 3. Water quality monitoring 4. Analyze test results and rank public water systems B. Adopt Tribal Drinking Water Standards That Are No Less Stringent Than Primary Drinking Water Standards 1. Interim standards and regulations 2. Final standards and regulations 178 ------- C. Establish Tribal Environmental PTOt Cflofl Board and Develop AdminiStrative Procedures for Enforcing Drinking Water Ouality Standards and Regulations 1. Enabling legislation 2. Conflicts of interest issues The Tribe describes in this section how it will propose to resolve any potential conflicts of interest. The Tribe indicates that when the Standing Rock Water and Sewer Company was established there was a corporate veil imposed between the Tribal government arid the water company. An independent Water and Sewer Board was established to govern and oversee the company’s operations and policies. The Tribe intends to charter a separate corporation, the Environmental Board, to enforce Tribal water quality standards. D. Systematize the Monitoring and Analysis Procedures of the Board 1. Bacterial, Organic and Inorganic Compounds and Radionucides 2. Reporting by Public Water Systems 3. Develop Technical Caç lity 4. Cooperative Agreemer Agreements with EF LHS, HUD and other agencies as are deemed necessary. E. llcJ fl gn1 iz 1. District Council, County Commission and City Council meetings 2. Public water system owners and operators F. Standards for New or Upgraded Public Water Systems G. Variances H. Emeraencies I. Record Keeping and Reporting J. Establish Proceduret forEnforcjoLStandardiIodEezulatiQ.fl 179 ------- K. y ew and Eva1uatj L. Demonstrate Capability IV. Program Implementation In this section the Tribe describes who will conduct the various aspects of the scope of work and the possibility of using consultants. The capabilities, education and experience of Tribal personnel involved in the scope of work are described. V. Budget A. EPA Contribution ITEM Staff Fringes Printing Postage Equipment Travel and Training Monitoring (Water Quality Analysis) Consultants Total Direct Costs Indirect Costs @ _% Total EPA Contribution B. Tribal Contribution ITEM Staff Fringes 180 ------- Rental (Office Space) Telephone and Utilities Total Tribal Contribution Percent Tribal Contribution _% NOTE : Some Tribes may choose a different list or mix or items for EPA funding and Tribal conthbutions. VI. Workplan Year 1 Year 2 Year 3 181 ------- |