Drinking Water Primacy
The Safe Drinking Water Act (SDWA) provides the opportunity for
Indian Tribes to take an active role in the enforcement of public
drinking water supply regulations within Indian reservations.
llf-o
Whom Can I Contact for More
Information?
What Is Primacy?
What fire the Advantages and
Limitations of Primacy?
When to Seek Primacy?
When Not to Seek Primacy?
How Can fiTribe Attain
Primacy?
What Is "Treatment fis ff
State"?
What Is fi Development Grant?
how Much Money Is Available?
What fire the Tribe's
Responsibilities fifter Gaining
Primacy?

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Drinking Water Primacy
Whom Can I
Contact For
Information?
This Primacy newsletter is designed to assist Indian Tribes in
understanding what primacy involves under the Safe Drinking Water Act
(SDWA) program of the Environmental Protection Agency (EPA). It
describes some of the advantages and limitations of the primacy program.
Tribes may want to take these into account as they consider applying for
primacy.
This newsletter is funded by the Office of Drinking Water of the U.S.
EPA. Another part of this project is to develop a Public Water System
Supervision (PWSS) and Underground Injection Control (UIC) primacy
procedures handbook for Indian Tribes and to conduct primacy workshops
for Tribes. If you would like to attend an informational workshop
regarding further details on the advantages and limitations of seeking
primacy and the steps and procedures necessary to achieve primacy,
contact your EPA Regional Drinking Water Section Chief. The addresses
and phone numbers of the Regional Chiefs are listed on the last page of
this newsletter.
What is
Primacy?
Primacy is a provision of the Safe Drinking Water Act (SDWA). It
allows Indian Tribes the opportunity to assume principal responsibility
for the enforcement of federal drinking water supply and/or underground
injection control (UIC) regulations in areas within the Indian Tribe's
jurisdiction. Currently this enforcement is performed by the Regional
Office of the U.S. EPA. A Tribe with primacy must have drinking water
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 the Tribe's regulations.
Primacy has serious economic and political implications for Tribes.
Deciding to seek or not to 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 Tribal program costs.
Primacy can allow a Tribe to more fully exercise its sovereign 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 regulation
of the reservation environment.
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Primacy
What fire The
Advantages and
Limitations Of
Primacy?
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 and land use planning)
6.	Regulatory enforcement
7.	IHS programs
8.	Continuing Tribal program responsibilities and costs after
primacy is achieved.
The implications for Tribes from each of these issues must be fully
explored as a Tribe decides whether or not to seek primacy. Each issue
has both 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
1. Sovereignty and
Self-Determination
Considerations:
ftdvantages/Benefits
¦ Tribe establishes drinking
water and/or underground
injection control rules and
regulations for Tribal lands.
¦ Tribe establishes procedures
for regulations and
enforcement.
Smaller Tribes can band
together to form a consortium
of Tribes for self-
determination goals
(formation of inter-Tribal
councils).
Strengthening of Tribal
government and ability of
Tribes to express civil
regulatory jurisdiction over
the actions of non-Tribal
members violating Tribal
environmental protection
laws and regulations.
Development of a program
limits state attempts to
regulate and to influence
resource development
decisions on reservation.
Limitations/Problems
¦ Tribe must keep rules and
regulations as strict as, or
stricter than, the U.S. EPA
rules and regulations.
¦	Tribe must establish an
independent Tribal regulatory
organization consisting of a
professional staff that must
enforce drinking water and/or
underground injection control
rules and regulations. It is
costly to form and fund a
separate Tribal agency for
enforcement.
¦	Costs will vary depending on
the 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
Tribe's authority to regulate
the behavior of non-Tribal
members on lands held in
trust for the Tribe.
¦	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 conflict
between states and Tribes
(and possibly even between
Tribes).
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Primacy
1. Sovereignty and
Self-Determination
Considerations
(continued):
Advantages/Benefits
¦ This is an opportunity for
government-to-government
relations in developing
uniform, comprehensive
regulations (for example,
Tribal-State cooperative
agreements).
Limitations/Problems
¦ Most Tribes own and operate
their public water systems.
This could be a potential
problem when applying for
primacy, because the Tribe
would be regulating itself. This
potential conflict between the
Tribe's water utility group and
enforcement group must be
resolved to EPA satisfaction,
usually by establishing the
regulatory program as an
agency of the Tribal
government which is
independent of Tribal
enterprises.
2. Tribal
Administrative and
Organizational
Capacities:
Strengthening of Tribal
governments.
Development and improvement
of Tribal administrative
procedures.
Tribal governments would
provide more direct services to
Tribal members.
Possible regulator-regulatee
conflict.
Development of additional
administrative structures and
programs may pose both
organizational and monetary
problems, especially for small
Tribes.
Total cost of program
development may be too
expensive for Tribal
government.
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Primacy
3. Political/Legal
Considerations
Advantages/Benefits
¦	Enhancing/strengthening
Tribal government and
authority.
¦	Enhancing recognition of
Tribal government by non-
Indian interests and
governments.
¦	Enhancing Tribal code
through the development of
Tribal environmental laws
specifically designed to meet
reservation needs.
Limitations/Problems
¦	Potential legal fees for ensuring
jurisdictional authority,
including costly court cases.
¦	Successful implementation of a
program requires careful
development of internal Tribal
administrative capabilities.
¦	General lack of knowledge and
information regarding
environmental problems on a
reservation may stall or delay
program development unless a
public education campaign is
launched.
4. EPf? Assistance
Programs:
fl. Technical
Assistance
Assistance in preparation of
a development grant:
(1)	Development plan
(2)	Commitment to
program and
budget from Tribal
Council
Provision of technical
assistance in the
development of programs,
conducting surveys,
developing regulations, and
organizing data-gathering
and data-storage procedures.
Limited EPA assistance is
available to primacy Tribes,
due to budget and resource
limitations.
There are time-consuming
procedures that often require
EPA approval.
There are monetary
considerations for hiring
professional staffs and services
to carry out these programs.
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Primacy
4. EPfl Assistance
Programs:
B. Funding/Grant
Programs
Advantages/Benefits
¦ Available funding for Tribes:
Public Water System
Supervision:
FY 89—$669,000
FY 90—$786,000
Underground Injection
Control:
FY 89—$525,000
FY 90—$558,000
Limitations/Problems
¦ Tribes must provide at least
10% matching funds. (In-kind
services may be used.) Costs
can escalate and require a
Tribe to spend a great deal to
get its program started. In the
future, the new SDWA
regulations will increase the
total funding requirement for
everyone significantly. The
amount of money available
from the EPA will not be
enough to cover Tribal program
costs. Total available funding
must be shared by
participating Tribes.
5. Environmental
Protection
Concerns:
Development of data useful to
long-term natural resource
management decision-making.
Employment of Tribal
membership in natural
resource inventories, sampling
and environmental protection.
Enhancement of Tribal self-
determination 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 the 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:
¦ Tribal agency will be
responsible for regulating and
enforcing compliance violations
by water utilities and owner/
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, the EPA
must rescind primacy and
conduct enforcement actions.
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Primacy
7. IHS Programs
fidvantages/Benefits
¦ 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.
IHS will continue to provide
technical assistance and
funding for water system
improvements after a Tribe
obtains primacy.
Limitations/Problems
¦	The availability of IHS
technical capability and
assistance may not satisfy
primacy requirements for
in-house staff expertise.
¦	IHS funds cannot be used to
support a Tribal 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 of the 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. IHS 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, IHS will
provide technical assistance to all Tribes regarding most environmental
health matters.
When to Seek
Primacy
A Tribe should seek primacy only if it has carefully considered all of
the issues regarding seeking and attaining primacy and has determined
that attaining primacy is in the best interests of the Tribe and its future
generations. Important considerations include the desire and ability to
enhance Tribal autonomy and self-determination, to strengthen Tribal
government, and to play a stronger role in the protection of the public
health and environment on Tribal lands. The decision to seek primacy is
a proper strategy if a Tribe is willing to develop and maintain the
necessary components of successful primacy:
1)	organizational structures and programs,
2)	technical expertise, and
3)	financial resources.
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Primacy


When Not to
Seek Primacy
A Tribe may decide not to seek primacy after it has
carefully considered all the ramifications of seeking and attaining
primacy. The costs and resources required to achieve and maintain a
regulatory program may far exceed the benefits from achieving primacy.
A major consideration for many Tribes is the availability of financial
resources to develop and maintain a regulatory and enforcement
program. The establishment and staffing of an effective, independent
enforcement/regulatory agency could have a seriously adverse impact on
Tribal funds, and possibly divert funds from other essential Tribal
programs. The costs of operating a primacy program are always greater
than the grant funds available from the EPA. If the Tribe is
experiencing difficulties providing adequate funding for the
Tribal water utility, then primacy would definitely be very
difficult for a Tribe to attain. Primacy is not an opportunity to
obtain additional EPA funds to construct, operate and maintain a
Tribal water utility or underground injection control facilities or
equipment.
The decision to not seek primacy could depend on where a Tribe is
located and the level of public health and environmental protection
offered by existing agencies. If this level is deemed adequate to protect
the drinking water delivered to Tribal consumers, ensure the
groundwater quality, and protect the overall reservation environment,
then the Tribe could save money under the existing regulatory
arrangement.
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Primacy
How Can A
Tribe Attain
Primacy?
There are three steps. First, an Indian Tribe needs to achieve
"treatment-as-a-state" designation. Then the Tribe will spend up to three
or four years developing its program. Finally, a Tribe will apply for
primacy when its program is developed. When an Indian Tribe
demonstrates that it has the ability to protect the public health by
regulating public water supplies and/or groundwater, the EPA may
assign enforcement authority to that Tribe. When this occurs, the Tribe is
granted primacy: the role of primary or main enforcer of the Tribal
regulations (as strict as federal) concerning safe drinking water and/or
protection of reservation groundwater.
Primacy brings regulatory control closer to home in the sense that
a Tribe is closer than the EPA to the systems being regulated. At
the same time, however, the Tribe is still required to adopt and enforce
Tribal safe drinking water regulations and codes which are at least as
strict as EPA regulations. The Tribe's regulatory actions will still be
closely monitored by the EPA via semi-annual and annual program
reviews.
How Does d
Tribe
Demonstrate It
Is Ready For
Primacy?
fl.Public Water
System
Supervision (PWSS)
Program
To be granted primacy for the public water system supervision
(PWSS) program, a Tribe must demonstrate to the EPA that it meets five
basic requirements:
1.	The Tribe has adopted drinking water regulations at least as
stringent as EPA 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, it 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.
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Primacy
B. Underground
Injection Control
(QIC) Program
The underground injection control (UIC) 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 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.
To be granted primacy for the underground injection control (UIC)
program, a Tribe must demonstrate to the EPA that its program contains
the following provisions:
1.	Prohibition of unauthorized injections
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 impose conditions on authorized injection activities
6.	Authority to impose compliance evaluation requirements
7.	Authority to take enforcement actions
8.	Authority for public participation in permit processing
9.	Authority to apply technical criteria and standards for the control
of underground injection
10.	Classification of injection wells
11.	Elimination of Class IV 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
13.	Authority over federal agencies and persons operating on
federally owned or leased property
14.	Authority to revise underground injection control programs
15.	Authority to make and keep records and make reports on its
program activities as prescribed by the EPA
16.	Authority to make available to the EPA upon request, without
restriction, any information obtained or used in the
administration of the program, including information claimed by
permit applicants as confidential.
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Primacy 	
If an Indian Tribe wishes to gain primacy, it must first apply for and
obtain "treatment-as-a-state" status. With this status, the Tribe can apply
for a development grant to develop its primacy program.
Whenever the federal government gives a state authority to
enforce a federal law, administer a program, or in some way act on
behalf of the federal government, it requires the state to have certain
legal 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 assigning enforcement powers, or primacy, to a
Tribe, it is necessary for each Tribe to present evidence that it:
1.	Is a federally recognized Tribe,
2.	Does promote and protect the health, safety and welfare of its
citizens,
3.	Has legal jurisdiction oveT a certain population and area, and
4.	Has or could develop the ability to carry out the program it is
asking for authority to administer on behalf of the federal
government.
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 enforcement authority in the Public Water
System Supervision Program and the Underground Injection Control
Program.
What Is
"Treatment-fls-
(t State"?
What Will The
EPff Expect In fl
"Treatment-fis-
ff-State"
Application?
In presenting an application, the EPA requires that a Tribe 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 the Tribal lands. In many cases a Tribe may also be asked
to provide written explanations or descriptions of how the Tribe operates.
The EPA allows fairly wide flexibility in the format of the presentation,
and will consider Tribal applications on a case-by-case basis.
(continued)
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Primacy
What Will EPA
Expect In B
"Treatment-fis-
fi-State"
Application?
(continued)
The four criteria that a Tribe must meet to qualify for "treatment-
as-a-state" are:
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 the public water supplies and/or injection wells which
are the subject of its application.
4.	The Tribe is "reasonably 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.
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.
What Is fi
Development
Grant?
In order for a Tribe to receive development grant funds, it first must
obtain "treatment-as-a-state" designation. A Tribe is then expected to
make a commitment to achieve primacy within three years of the
application for development grant funds for the PWSS program and
within four years of the application for the UIC program.
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, the Tribe should have a
reasonably good understanding ofwhat the cost of achieving primacy will
be, and at that point the Tribe would apply for a grant.
A development grant application should contain a reasonably complete
description of what the 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.
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Primacy
What fire The
Uses/Restrictions
of Grant Funds?
Development grant funds may be used for expenses directly related
to developing a primacy program. They may be used for:
¦	hiring an attorney to review drinking water statutes or codes
developed by a Tribe in order to qualify for primacy
¦	consultants' fees to help set up a record-keeping system
¦	office expenses such as telephone charges for calls to get
assistance from EPA, IHS, etc.
¦	expendable office supplies: paper, copier supplies, postage used in
preparing for primacy
¦	travel expenses to consult with EPA or other agencies about PWSS
or UIC matters
¦	training costs to develop needed technical expertise.
Development funds may not be used for such things as:
¦	expansion of a public water supply system
¦	purchase of new equipment
¦	salaries of operators
¦	ongoing operating and maintenance expenses
¦	funding a Tribal utility authority.
*
m 1 i#:
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Primacy
How Much
Money is
Available?
EPA funds are extremely limited. Current funding levels are listed below.
Funding for Tribes
FY 89
FY 90
PWSS
$669,000
$786,000
UIC
$525,000
$558,000
EPA will allocate these funds for Tribal primacy development grants and
for 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% of their primacy program funding
from the EPA. The total amount of funds available from the EPA is not
expected to increase significantly in the future. This means that available
funds from the EPA will not be enough to cover Tribal program costs.
New regulations are currently being developed by the EPA that will
significantly add to the costs of administering a Tribal primacy program in
the future. Also, the SDWA regulations are becoming more
comprehensive and strict, and will require a greater effort for a Tribe to
develop regulations at least as stringent as EPA regulations. In addition,
the number of Tribes competing for funding for development grants and
for primacy program grants is going to increase. This means that Tribes
may receive smaller and smaller amounts of funds from the EPA at the
same time that the demands for stricter levels of compliance will come
into effect.
What fire The
Responsibilities
After Gaining
Primacy?
Continuation of primacy for a Tribe, as in the case of all 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. The EPA now regulates 30
contaminants, and is scheduled to regulate 53 more over the next two to
three years. In addition, the EPA has been mandated by Congress to add
25 additional contaminants to the list every three years. Within five years
the list will contain over one hundred regulated contaminants. A Tribe
with primacy will be responsible for monitoring all regulated
contaminants. If a Tribe does not fulfill its primacy obligations, the EPA
will 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 that sufficient funds are available
to maintain a primacy program, regardless of EPA's year-to-year funding.
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 to, and capable of,
running the program indefinitely.
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Primacy
111

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1024586

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EPfi Regional
Contacts:
EPfi Project Manager
Chief, Drinking Water Branch
U.S. EPA, Region I
Office of Water Supply (2103)
JFK Building
Boston, MA 02203
Phone: (617)565-3610
Chief, Drinking Water Branch
U.S. EPA, Region H
26 Federal Plaza, Room 853
New York, NY 10278
Phone: (212)264-1800
Chief, Drinking Water Branch
U.S. EPA, Region IV
345 Courtland Street
Atlanta, GA 30365
Phone: (404)347-2913
Chief
Safe Drinking Water Branch
(5W-TUB-8) U.S. EPA
Region V
230 S. Dearborn
Chicago, EL 60604
Phone: (312)353-2650
Chief
Water Supply Branch
U.S. EPA, Region VI
1445 Ross Avenue, Suite 1200
Dallas, TX 75202-2733
Phone: (214) 655-7150
Roger Barnes (WH 550E)
Office of Drinking Water
U.S. EPA
401 M Street, SW
Washington, DC 20460
Phone: (202)475-8997
Or: (202) 245-4194
Chief, Drinking Water Branch
Water Management Division
(DRNK) U.S. EPA, Region VII
726 Minnesota Avenue
Kansas City, KS 66101
Phone: (913)551-7032
Chief, Drinking Water Branch
(8WM-DW) U.S. EPA
Region VIII
999 18th Street, Suite 500
Denver, CO 80202-2405
Phone: (303)293-1430
Chief, Drinking Water Branch
U.S. EPA, Region IX
Water Supply Section (W-6-1)
1235 Mission Street
San Francisco, CA 94105
Phone: (415)705-2111
Chief, Drinking Water Branch
U.S. EPA, Region X
Mail Stop WD-132
1200 Sixth Avenue
Seattle, WA 98101
Phone: (206)442-4350
DATE DUE
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