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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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”;
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.]
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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(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.
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(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).
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(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.
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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.
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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.
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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
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(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
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(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 ’ )
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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.
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“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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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
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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
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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.
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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
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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
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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;
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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;
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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).
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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
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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.
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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.
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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.
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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.
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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);
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- 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.
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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.
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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.
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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
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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.
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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
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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
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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
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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
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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
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TASKS
YES I 1Q DATE. IF NO
5. Budget
a. Tribal contribution — —
b. EPA contribution — — _______
71
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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
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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
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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
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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
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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
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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
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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
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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
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APPENDIX 1: ROBERT J. BLANCO MEMORANDUM
81
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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.
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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
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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
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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.
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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.
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(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.
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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.
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(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).
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(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
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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
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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
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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 .
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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
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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.
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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.
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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
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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
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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
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APPENDIX 4: EXAMPLE
UNDERGROUND INJECTION CONTROL (UIC)
PROGRAM AUORNEY GENERAL’S STATEMENT
159
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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
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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
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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
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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
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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
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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
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(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
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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
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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
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APPENDIX 5: TYPICAL OR SUGGESTED TRIBAL STATEMENTS
IN APPLICATIONS
171
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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