Fact Sheet Revision to State Primacy Regulations for the Public Water System Supervision (PWSS) Program 40 CFR Part 142, Subpart B (54 FR 52126, December 20, 1989) Office of Water Office of Drinking Water 382-5522 December 20, 1989 ------- I. CURRENT SITUATION o On November 30, 1989, the EFA Administrator promulgated revised State primacy regulations under Subpart B, Part 142. The revised regulations appeared in the Federal Register on December 20,1989 (54 FR 52126). The revised regulations established for the first time the requirements and procedures a State must follow to request EPA approval of program revisions to approved State primacy programs. They were proposed on August 2, 1988. o Currently, 54 States and Territories have primacy. Indiana, Wyoming, Washington, DC, and the Indian Tribes are the only entities where EPA continues to directly implement the PWSS program. o The 1986 SDWA amendments will substantially change current State primacy programs; over 10 major new and revised EPA regulations (covering 83 contaminants, disinfection, filtration, and public notification) are planned for promulgation by 1991. o To retain primacy, States must adopt all new and revised EPA regulations and request EPA approval of these revisions to the approved primacy program. States must follow the new primacy regulations for all future program revisions. II. BACKGROUND TO REVISED REGULATIONS o Statute (Section 1413). To obtain or retain primacy, the SDWA requires States to: adopt drinking water regulations no less stringent than the EPA national primary drinking water regulations (NPDWRs) in effect; adopt and implement adequate procedures for enforcement; keep records and make reports as required by EPA; issue variances and exemptions (if at all) which are no less stringent than required by EPA; and adopt and be able to implement an adequate emergency plan to provide drinking water. o Regulations (40 CFR. Part 142. Subpart B) . The original primacy regulations (issued in 1976) required the States to demonstrate to EPA that they met the five statutory provisions to obtain primacy. The basic requirements to obtain or retain primacy do not change with the revised regulations. ------- - 2 - III. and Status of New Regulat ions Under SDWA o For states to retain primacy, they must adopt all new and revised EPA regulations as part of their approved primacy program. The new regulations resulting from the SDWA asendnents are as follows: Pinal Actions to Date VOC (52 FR 25690, July 8, 1987). Public Notification ' (52 FR 41534, October 28, 1987). Filtration & Disinfection of Surface Water (54 FR 27486, June 29, 1989) Total Coliforms (54 FR 27544, June 29, 1989). Proposed Actions To Date Lead/Copper, (53 FR 31516, August 18, 1988). Inorganics/Synthetic Organics, 38 contaminants (54 FR 22062, Kay 22, 1989). Additional Contaminants To Be Regulated Radionuclides. Additional Inorganics/Synthetic Organics. Disinfection for Groundvater/Disinfection By-products. 1st Additional 25 Contaminants in 1991. Additional 25 NPDWRS in 1994 and Every Three Years Thereafter. ------- - 3 - IV. CHANGES TO PRIMACY PROCESS MANDATED BY REVISED PRIMACY REGULATIONS o The revised regulations set deadlines, establish an EPA review process, and define materials to be submitted for State program revisions to existing primacy programs. The major changes are as follows: Full Prlmecy tod Deadlines.States muat adopt all rvov and revised EPA HPDtfRs within 18 months of promulgation I by EPA to retain primacy, unless tVX grants an extension, not to exceed two years, for causa. Extension Process. The new regulation raqulraa the State to request EPA approval of an extenalon before tha 18-Bonth period paaaaa, based on explicit axtanalon criteria in tha regulation. Update to tha Approved Primacy Prog-ram. Stataa must submit matariala sujflciant to updata tha approvad primacy program with thalr raquaat for EPA approval of each program ravlalon. CroesvalX and CbecJdlet Tha naw regulation specifies that tha stataa lufimit a aida-by-sida damonatratlon with aach Stata raquaat for program ravlalon that tha State aaata all EPA primacy raquiramanta under {142.10, including that tha stata regulations are *no lama atringent." Attorney General Certification. The new regulation requires an Attorney General'a statement with the complete and final stata request, certifying that the state atatutas and regulatione for the program revision •re legally adopted and enforceable. Two-step Process for OA Review. The new regulation requires EPA to make a tentative determination on tha State requaat for program raviaion if the atata. at ita option, submits a preliminary request containing draft materials. The EPA final determination is subjsct to public notice and hearing (upon request). Special Primacy Program Requirements and Reports. The new regulation Incorporates by reference the primacy requirements and special Stata reporting under tit* Individual irvianu, Tbata special primacy requirements 1 ft be met for EPA approval of the program revision. o The basic primacy requirements in the original regulations were left unchanged, except for three modifications: 1) States must agree to report new violations and State enforcement actions to EPA on a quarterly, rather than annual, basis, 2) for States allowing variances, the State must adopt the EPA's determination of best available technology (BAT), and 3) the State emergency plan requirement can be met for groundwater resources through the State Wellhead Protection Program's contingency plan. ------- -4- V. PROCESS FOR STATE REQUEST FOR EPA APPROVAL OF PROGRAM REVISIONS o Under the revised regulations, States must submit within 18 months a complete and final request for EPA approval of program revisions to their approved \ cimacy program for all new and revised EPA regulations. At its option, States may submit a preliminary request and receive an EPA tentative determination anytime before the 18-month deadline. The program revision process under the regulations is as follows: TIMETABLE FOR REQUESTS FOR APPROVAL Event Event Time 'Total Time Promuigaoon of new or revised NPDVVR or regulations 0 0 Regions notify states that rule was promulgated; establish process and schedule for Region/state review and approval 3 mo. 3 mo. States and Regions agree on plan tor state application and ameune 2 mo. 5 mo. Step I State submits preliminary request 4 mo. 9. mo. EPA Review Regional Headquarters 60 days 30 davs 11 mo. , U mo, Region notifies state of tentative determination 90 days' 12 mo. Step 2 State submits complete and final request 6 mo. 18 mo.* EPA Review** Regional Headquarters 60 days Mdays 20 mo. 31 IPO- Region notifies state of determination, issues public notice, and conducts hearing process 90 days* 21 mo. Region publishes final determination 24 mo. Deadlines cited in regulations This review will be comprehensive if no preliminary request was submitted NOTE. Extensions may be requested durmg the process, but states must allow adecuate nme for the Region to review and giant an extension within the 18-month deadline. - ------- - 5 - VI. EXTENSIONS TO DEADLINES FOR STATE REQUESTS The revised primacy regulations establish a process for EPA to extend the deadline for State submission of program revisions beyond eighteen months from EPA's promulgation of the new or revised regulation. Extensions may be approved by EPA for a period not to exceed two years. o A State may request an extension if one or more of the following conditions exist: Legislative or regulatory authority to enforce the new or revised regulations is lacking, or Program capability is inadequate to implement the new or revised requirement, or The State wants to group two or more program revisions in a single legislative or regulatory action. The extension process is as follows: EPA Promulgates Regulation S S / Stats sJvxdd notify EPA that an extension wiH be requested (tf known at this time) Final extension request due to EPA State Implements agreed-upon program wfthln current capabilities; Region oversees (throogfi annual review review procass) Extension approved- by EPA "Regno &rtTum&ei<6fea o The extension request is to include a schedule setting forth when and how it will gain authority and (if appropriate) the capability to request the program revision. o Before EPA approval of the extension, the State and EPA must agree on the State activities during the extension period to impleaent the new provisions within its authority and capability; activities may include: Informing public water systems of the new EPA requirements and their responsibility to comply? Collecting, storing, and managing laboratory results and other compliance data; Conducting informal follow-up on violations; Providing technical assistance to public water systems; Providing the Region with all the information required under the State reporting provision (142.15). ------- - 6 - VII. CONTENTS OF STATE REQUEST FOR PROGRAM REVISIONS The revised primacy regulations require the State request for EPA approval of program revisions to include: o An update to the approved primacy program because of the program revision — this includes a checklist identifying which program elements have and have not been affected by the revision and a crosswalk of State and Federal authorities to demonstrate that the state regulations are "no less stringent;" o Additional materials required under the "Special Primacy Requirements" section (142.16) unique to the specific EPA rule to be adopted; and o For the final request only, an Attorney-General Statement certifying that the State laws and regulations for the program revision have been duly adopted and are enforceable. ------- |