UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG 121
Date Signed: 1998
DRAFT/DELIBERATIVE PROCESS/DO NOT RELEASE UNDER FOIA
MEMORANDUM
Subject: Implementation of the Interim Primacy Provision Under Section 1413 of the Safe
Drinking Water Act Amendments of 1996
From: Robert J. Blanco, Director
Implementation and Assistance Division
To: Drinking Water Branch Chiefs
Regions I - X
As a follow-up to our discussions during the June 12, 1998, Branch Chiefs' Meeting in
Williamsburg, Virginia, I am presenting the implementation issues which were outlined in my
June 6, 1998, memorandum on the interim primacy provision in §1413(c) of the 1996 Safe
Drinking Water Act Amendments. For most of these issues, I am also presenting how the issues
were resolved at the Branch Chiefs' meeting. Where our discussions produced no resolution, I
am presenting options discussed as well as our preferred approach.
1. Interpretation of "Each Existing NPDWR"
Issue: Section 1413(c) of the SDWA and §142.12(e) of the Primacy Rule require, as a
prerequisite to applying for interim primacy, that the State has an approved primacy program for
"each existing national primary drinking water regulation" (NPDWR). Must the State have
primacy for all NPDWRs to date when a new NPDWR is promulgated, or must the State only
have primacy for all pre-1996 NPDWRs?
Resolution: The Branch Chiefs agreed that Congress intended for interim primacy to be
granted only where States are up-to-date on primacy (or interim primacy) for all NPDWRs
promulgated to date. Both the statute and the rule explicitly say that a State must have primacy
for "each existing national primary drinking water regulation" in order to utilize the interim
primacy provision. However, implementation of this provision may not take place until several
years from now (when States submit their primacy program revisions). So, when this provision
is read in the future, "existing" will refer to all regulations promulgated to date at that time.
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2. Rules Promulgated Within Close Proximity
Issue A: Two or more Federal rules are likely to be promulgated simultaneously or
within close proximity of one another. Should States be allowed to combine two rule
applications and still take advantage of interim primacy?
Resolution: In order to reduce the burden on the States, participants agreed that States
should be allowed to combine two or more rules in one primacy revision package and receive
interim primacy for both rules. Participants also agreed that we should treat a State's interim
primacy status for a rule as full primacy for purposes of allowing the State to take advantage of
the interim primacy provision when adopting future Federal rules.
We believe that rule effective dates should not bear on a State's ability to take advantage
of this provision. A State's rule adoption and submission of its primacy revision application
must fall within the statutory two year period and two year extension period to take advantage of
interim primacy.
Issue B: It is likely that some States will be granted interim primacy for a rule (Rule 2)
based on interim primacy that has been granted for a past rule (Rule 1). If a final determination
is made to deny primacy for Rule 1, how will this decision affect interim primacy for Rule 2?
Discussion & Request for Comment: This issue was not discussed at the Branch Chiefs'
meeting and therefore we request your comment on our suggested approach. We believe that a
State which in good faith relied on the interim primacy of Rule 1 and reasonably expected to
receive full primacy for Rule 1, should be allowed to retain the interim primacy status for Rule 2,
even if Rule 1 's primacy is denied. However, we believe that once primacy is denied, the State
can no longer take advantage of interim primacy for new rules. To remedy this situation, the
State could simply submit an updated application for interim primacy for the rule for which
primacy was denied. The State would then, once again, be eligible to receive interim primacy.
3. Technical Amendments to Existing Rules
Issue: Technical changes to existing NPDWRs will vary in their importance and the
effect on their respective rule's existing requirements. How will we determine which technical
amendments States must have interim primacy for before they can take advantage of interim
primacy for a new rule? How will we inform the States?
Resolution: Participants agreed that the workgroup responsible for the rule change
should assess the importance of the change. The workgroup would be responsible for
determining if States will be required to apply for interim primacy for the rule change before
being eligible for interim primacy for future rules. We expect that if States must adopt a change
to make their programs as stringent as the Federal program, then a regulation workgroup would
determine that the State must apply for interim primacy for the rule change. If, on the other
hand,
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the rule change is intended only to add flexibility, then the State would not be required to apply
for interim primacy.
When a regulatory workgroup determines that a rule change must be adopted in order for
a State to retain primacy for the related NPDWR, then such a requirement will be noted in the
preamble to the technical amendment. The technical amendment would be treated as a NPDWR
and States would be required to apply for interim primacy for the technical amendment before
they could take advantage of interim primacy for future rules.
4. Interpretation of NPDWR
Issue: Interim primacy only applies to NPDWRs. Which regulations are considered
NPDWRs?
Discussion & Request for Comment: No consensus was reached on this issue. There are
two suggested approaches: (1) broadly interpret that every regulation published in Part 141 is a
NPDWR since this has been our position in the past and the legislative history on the interim
primacy provision could support this interpretation; or (2) interpret NPDWR as only a regulation
published under the authority of §1412 of the Safe Drinking Water Act. Section 1412 is the only
portion of the Act that requires EPA to promulgate "NPDWRs." Elsewhere in the Act, more
general terms, such as "regulation" or "requirement," are used.
We support a broad interpretation that would bring most regulations promulgated in our
program under the umbrella of interim primacy - including the Consumer Confidence Reporting
Rule and the Public Notification Rule. These rules are important to State programs, and making
their adoption a prerequisite to taking advantage of interim primacy may be an incentive for
some States to adopt them. Because the Branch Chiefs did not make a recommendation on this
issue, we would like to consider any comments before making a final determination.
Please submit your comments to me by July 24,1998. We will make final
determinations on the unresolved issues by the end of August 1998. Also, as requested in my
June 6, 1998 memorandum (attached), please submit your plans for approving primacy for those
States who do not currently have full primacy by July 24,1998. If you have any questions,
please contact me at (202) 260-7077 or contact Jennifer Melch at (202) 260-7035.
Attachment
cc: Connie Bosnia, RIB, OGWDW
Betsy Devlin, WED, OECA
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