Date Signed: September 16, 1988

SUBJECT:   Policy on Regional Response to a State Which
             Decides to Accept the Five Percent Reduction
             in its PWSS Program Grant

FROM:      Michael B. Cook, Director (signed by Michael B. Cook)
             Office of Drinking Water

TO:          Richard L. Caspe, Director
             Water Management Division

       This responds to your request, made in your May 2, 1988, memorandum which provided
comments on the 1989 PWSS Enforcement Agreement Guidance, for a statement of the Office of
Drinking Water's official position on the response a Region should make if a State elects to
accept a five (5) percent reduction in its PWSS program grant.  This reduction would be imposed
as a penalty for not enforcing a lead ban and/or the lead public notification requirements as
mandated by Section 1417 of the Safe Drinking Water Act (SDWA or the Act). We have
considered this question and our position is described below.

       Section 1417(b) of the SDWA requires States to enforce the lead ban and the lead public
notification requirements.  It is important to note that the SDWA  does not require a State to enact
a lead ban.  Rather, the Act requires a State to enforce the SDWA ban on the use of lead through
any means a State believes is appropriate. A  State law would ensure that all areas within the
State would be uniformly covered and would make State-wide enforcement much easier than if
each local jurisdiction were to have its own rules or codes; however,  EPA cannot require a State-
wide law or regulations.

       Section 1417(c) specifies the penalty a State faces for not  complying with 1417(b); that
is, EPA may withhold up to five (5) percent of that State's PWSS  program grant. We have
developed guidance for the Regions on the withholding of five (5) percent of a State's grant.
This guidance should be issued in final version [or form] shortly.  The situation you describe
would arise after EPA has withheld five (5) percent of the grant and the State informs EPA that it
has no plans to enforce a State-wide lead ban and/or the lead public notification requirements,
despite the loss of the Federal funding for its  PWSS programs.

       You are correct in your statement that the Region may not initiate primacy withdrawal for
failure to enforce the lead ban and/or lead public notification requirements. Section 1413 of the
SDWA, which sets forth the requirements for State primary enforcement responsibility
("primacy"), requires a State to have "adopted drinking water regulations which are no less



stringent than the national primary drinking water regulations in effect under Sections 1412(a)
and 1412(b) and to have adopted," and be implementing "adequate procedures for the
enforcement of such State regulations." The lead ban is not a national primary drinking water
regulation promulgated under the authority of Section 1412(a) or 1412(b) of the SDWA; rather it
is contained in Section 1417.  Therefore, it is not a requirement for primacy.

       Even though the enforcement of the lead ban and lead public notification provisions is not
a requirement for primacy, it is ODW's position that these provisions of the SDWA are of high
priority.  The Regions should, therefore, do as much as  possible to convince a State to enforce a
State-wide lead ban, to promote and enforce local lead bans, and to enforce the lead public
notification provisions. There are several options open to the Region for doing this. One would
be to meet with the State directors, State legislators, and the members of the governor's staff to
try to work through the issue. Another option would be to issue press releases or write
newspaper articles informing the affected communities of the health effects of lead and that their
State officials have not acted in accord with the SDWA to protect their health. The Region could
also encourage local environmental or  other civic groups to  become involved in the lead ban

       Thus, although there may be no direct mechanism to force a State which does not wish to
do so to enact and/or enforce a lead ban and lead public notification provisions, there are options
available to the Region to deal with the situation.  Regions should thoroughly plan any course of
action and I would appreciate it if you would inform Headquarters of your plans before

       In your May 2, 1988, memorandum, you had also asked for a legal  opinion on the use of
the emergency provisions of the SDWA (Section 1431) to enforce the lead ban.  We have been
working with the Office of Enforcement and Compliance Monitoring and the Office of General
Counsel on this issue and should be able to provide you with guidance shortly.

       I hope this is responsive to your question.  Should you wish to discuss this further, please
call me.

cc:    Water Management Division Directors
       Water Supply Branch Chiefs