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                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                WASHINGTON, D.C. 20460
                                    FEB  22
                                                                             OFFICE OF
                                                                          ENFORCEMENT AND
                                                                        COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT:
FROM:
               Guidance for Safe Drinking Water Act Primacy Agencies on How to Enter
               Resolving Action Codes into SDWIS for Past Public Notice Violations and
               Clarification on How to Address Public Notification Violations in Certain
               Circumstances

               Mark Poll ins.  Director
               Water Enforcement Division
TO:
               Edward J. Messina, Acting Director
               Monitoring Assistance and Media Programs Division

               Drinking Water Enforcement Managers, Regions 1-10
       This memorandum provides primacy agencies guidance on entering resolving action
codes into SDWIS indicating that a past violation of public notice (PN) requirements has been
appropriately resolved and no further enforcement action is warranted. This memorandum also
provides additional clarification on properly addressing PN violations in certain circumstances.

Entry of Resolving Action Codes into SDWIS

       The December 8, 2009 Drinking Water Enforcement Response Policy establishes
enforcement priorities for those public water systems (PWSs) with the most serious and/or
repeated violations.  The Enforcement Targeting Tool (ETT) is used to assign a point value for
each SDWIS  violation and to produce a quarterly aggregate score for each noncomplying PWS.
A PWS's ETT score allows noncomplying systems to be ranked according to the seriousness of
their violations. Old PN violations that remain coded as unresolved in SDWIS years after their
occurrence (either because they were not acted on, or because they were resolved but not
recorded as such) continue to contribute to a PWS's quarterly ETT score.  In many instances, the
points for unresolved PN violations are responsible for pushing a PWS's ETT score past the
threshold for designating it as a priority system. Left unresolved in SDWIS, PN violations can
inflate a PWS's score, often creating the misleading appearance of serious noncompliance even
though the underlying violations that gave rise to the notice requirement have long since been
addressed and returned to compliance.
                                 Internet Address (URL) « http://www.epa gov
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       With this guidance, EPA is providing primacy agencies an opportunity to help ensure that
the ETT generates scores that accurately reflect the seriousness of their PWSs' current
noncompliance. To accomplish this goal, during the period from April 1, 2011 to September 30,
2011, primacy agencies can enter resolving codes into SDWIS for older PN violations as
follows:

   1.  PN violations with a compliance period begin date prior to January 1, 2006 are more
       than five years old, and the statute of limitation for those violations has run. For these
       violations, the primacy agency can enter the resolving action codes SO6 (State
       Intentional No Action) or EO6 (Federal Intentional  No Action) into SDWIS to indicate
       that no further enforcement response is warranted.

   2,  If PN violations have a compliance period begin date between January 1,2006 and
       December 31, 2009, the primacy agency can enter the resolving action codes SO6 or
       EO6  for those violations, but only if the underlying violation that triggered the
       requirement for public notice has been addressed or returned to compliance. If the
       underlying violation has not been addressed or returned to compliance, the points
       associated with the PN violation remain part of the system's ETT score, and the primacy
       agency will be expected to address the PN violation or return it to compliance in
       accordance with the ERP.

   3.  If PN violations have a compliance period begin date of January 1,2010 or later, the
       points associated with the PWS's PN violations will be included in its ETT score, and the
       primacy agency is expected to address the PN violation or return it to compliance in
       accordance with the ERP.  The primacy agency will ensure that the information reported
       to SDWIS accurately represents the PWS's compliance status with respect to its PN
       violations,

Clarification on How to Address PN Violations in Certain Circumstances

       A number of questions have been posed to EPA about the proper way to address PN
violations in specific circumstances.  We would like to take this opportunity to provide the
following clarifications:

    1.  If a PWS fails to provide required public notice but the primacy agency provides the
       public notice on behalf of the owner and operator of the PWS, the notice requirements
       under the regulation have been met.  After providing such notice, the primacy agency
       may enter the resolving code SOX (State Compliance Achieved) or EOX (Federal
       Compliance Achieved) into SDWIS for that violation (see 40 CFR § 141.210).

   2.  Community Water Systems (CWS) are not required to provide stand alone public notice
       of Tier 3 violations if the CWS  includes the appropriate notification of the Tier 3
       violation in a Consumer Confidence Report (CCR) and the violations took place during
       the period covered by the CCR (see 40 CFR § 141.204(d)). Additionally, if a CWS

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      includes a past due PN in a current CCR, the CWS meets the criteria for returning the PN
      violations to compliance, and the primacy agency can enter SOX or EOX into SDWIS for
      those PN violations, indicating that no further enforcement response is warranted. The
      following two examples illustrate how CCRs can be used to satisfy PN requirements and
      how they should be coded into SDWIS:

          o  CWSs can use their CCRs to avoid PN violations. CWSs are required to issue a
             CCR every year on July 1 covering the period between January I to December 31
             of the preceding calendar year (i.e., a CCR issued on July 1, 2010 covers the
             period from January 1, 2009 to December 31, 2009).  The CWS can use its CCR
             to fulfill the public notice requirement for Tier 3 violations, provided the CWS
             includes the required public notice in a CCR that issues no  later than one year
             from the date the system learns of the violation or situation. Therefore, if a CWS
             uses its CCR to provide Tier 3 public notice for violations that have occurred
             since July  1 of the previous year, timely public notice has been provided, and
             there is no PN violation.
          o  CWSs can use their CCRs to resolve PN violations.  For example, a CWS failed
             to monitor for nitrate in November of 2008, so it was required to issue a Tier 3
             notice within twelve months of that failure to monitor. The CWS failed to
             produce PN about the violation during the next twelve months, and it also failed
             to provide notice of the November 2008 violation in its July 1, 2009 CCR
             (covering the period January 1, 2008 through December 31, 2008).  Because the
             CWS did not provide PN or include the violation in the CCR, two violations
             should be entered into SDWIS: one under violation code 75 for the CWS's failure
             to provide Tier 3 public notice, and one under violation code 72 for its issuance of
             an incomplete CCR. If the  PWS includes the appropriate PN text (following the
             PN content requirements in 40 CFR § 141.205) for its November 2008 failure to
             monitor violation in a subsequent CCR, the CWS addresses and resolves both
             violations, and the primacy agency can enter the enforcement response code of
             SOX or EOX into SDWIS indicating that the violations have been returned to
             compliance. Points associated with those violations will no longer be included
             the CWS's ETT score.

      We appreciate your attention to this guidance and help in resolving the identified data
issues. It is our hope that initiating these actions will help the ETT function better and further
enhance our shared responsibility to establish informed enforcement priorities.  If you have any
questions, please contact  Ben Bahk at 202-564-4293 or Joyce Chandler at 202-564-7073.

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