UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Date Signed: August 18, 1989
MEMORANDUM
SUBJECT: Implementation and Enforcement of the Lead
Prohibition and Lead Public Notification
Requirements of the Safe Drinking Water Act in
Fiscal Years 1990 and Beyond
FROM: Michael B. Cook, Director (signed by Robert J. Blanco)
Office of Drinking Water
TO: Water Management Division Directors
Regions I - X
Several questions have arisen about the implementation and enforcement of the lead ban
and lead public notification requirements of Section 1417 of the Safe Drinking Water Act
(SDWA) for fiscal years 1990 and beyond. Lead is one of the four contaminants to which the
Office of Drinking Water has assigned a high priority due to the significant health risk caused by
exposure to this contaminant. The lead ban in Section 1417 of the SDWA is one of the primary
mechanisms through which exposure to lead can be controlled and public health can be
protected. It is crucial, therefore, that we convey to the States the importance we place on
implementing and enforcing the requirements of Section 1417. The purpose of this
memorandum is to clarify our expectations in this regard.
Detailed guidance on this subject was provided to the Regions last October; however, it is
important to restate and elaborate on some of the fundamental principles contained in that
guidance. The most important item is that in FY 1990 and beyond, the States must demonstrate
effective implementation and enforcement of the lead ban. The Regions must evaluate this
demonstration; if the State's program is unsatisfactory, they are to withhold five percent of the
State's program grant.
Before discussing the FY 1990 requirements. I will briefly review the other items noted
in the October 4, 1988 Guidance.
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A. Statutory Authority
Section 1417Ta) of the SDWA prohibits the use of any pipe, solder or flux which is not
"lead free" in the installation or repair of any public water system or in any plumbing in a
residential or nonresidential facility providing water for human consumption which is connected
to a public water system.
Section 1417(a)(2) requires each public water system to identify and provide notice to
persons who may be affected by lead contamination of their drinking water and specifies the
contents of the public notification. EPA promulgated final regulations on October 28, 1987 to
implement this provision (40 CFR 141.31).
Section 1417(b) provides that the prohibition on the use of lead in public water systems
and the public notification requirements shall be enforced in all States as of June 19, 1988. The
section further specifies that the States shall enforce the lead prohibition through State or local
plumbing codes, or other means of enforcement as the State may determine to be appropriate.
Section 1417(c) authorizes EPA to withhold up to five percent of a State's Section
1442(a) public water system supervision (PWSS) program grant if the Administrator determines
that the State is not enforcing the lead prohibition or the lead public notification requirements.
B. Approach
It is EPA's policy to use its statutory authority to withhold the full five percent of a State's
grant if the State is not meeting the requirements of Section 1417.
C. Status of Implementation in FY 1989
In FY 1989, in order for a State to receive its full PWSS grant, the State was required to
submit to EPA a certification describing: (1) its lead ban and whether it covered the entire State;
and (2) the procedures the State used or was using to implement the lead public notification
requirements. The Regions were to review this certification and other available information
against the requirements of the SDWA and the October 4, 1988 Guidance to determine whether
to approve the certification. The certification had to be submitted to EPA by March 31, 1989.
Currently, all States have approved certifications in place, with the exception of
Pennsylvania. However, it has come to our attention that in some cases the State lead bans
themselves may not meet the minimum federal statutory criteria; that is they do not cover pipe,
solder, and flux, or they don't cover the entire State. Given this situation, the Regions should
carefully review the certifications they have approved. If the lead bans do not meet the statutory
criteria described above, the Region should immediately notify the State and see that a corrective
action is initiated as soon as possible. If the State is unwilling or unable to correct a deficiency in
its lead ban, then the Region is to withhold five percent of the State's FY 1990 PWSS grant.
Additionally, we are very concerned about the low rates of compliance with the public
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notification requirements in many States. Failure by the State to enforce the public notification
requirements is to result in the withholding of grant funds in FY 1990 as described below.
D. Implementation in FY 1990 and Beyond
In FY 1990 and beyond, two items are required: an initial certification (as described in
Section C) and a demonstration of effective implementation and enforcement of the lead ban and
the lead public notification requirements. This section will discuss each of the requirements and
possible mechanisms for obtaining this information.
1. Effective Implementation and Enforcement.
The States should provide the Region information which demonstrates that the
requirements of the lead ban/lead public notification regulations are being uniformly and
effectively enforced throughout the State and that violations are being acted upon. The
information should include:
(a) Any changes in laws, regulations, or ordinances which may affect
the lead ban program (i.e., the lead ban itself and the lead public
notification requirements);
(b) A summary of public notification compliance which includes the
number of systems that have complied with the public notification
requirements and the percent of the State's population these
systems serve. In those States which have systems which have not
complied with the public notification requirements, the State
should submit a description of the activities it is taking to
follow-up with those systems.
(c) A summary of State lead ban program compliance and enforcement
activities, including a description of the mechanisms used to
enforce the lead ban and the level of enforcement activity.
(d) A description of activities related to the lead ban program and
public outreach and educational activities planned for the coming
fiscal year, and highlights of those activities for the past year.
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2. Evaluation of State Submissions
Regions should review the information submitted to determine whether or not the State is
effectively implementing and enforcing the lead ban and lead public notification provisions.
Because each State may choose how to implement the program it is difficult to give nationwide
evaluation criteria; however, the following is a list of some elements to consider:
Is it clear from the State submission(s) which organization(s) are
responsible for overseeing the lead ban/lead public notification programs?
Do these organizations have the authority and/or the capability to
effectively implement the program?
How many "spot-checks" of compliance with the lead ban has the State
performed? What were the results? How many violations found were
acted upon by the State? If the State has performed no "spot-checks" or
has not acted upon violations, how can this be effective enforcement and
implementation?
How many enforcement actions for violations of the lead ban or lead
public notification requirements has the State taken? Were these actions
stringent enough to deter future violators? If the State has not taken any
enforcement actions, how can the State claim an effective enforcement
program?
What is the level of compliance with lead public notification
requirements? How have the States dealt with noncompliance?
What specific outreach activities (other than public notification for
systems which have not complied with the lead public notification
requirements) has the State conducted? If the State has done none or has
put forth only a minimal effort, how can it claim an effective program?
Is the Region aware of any information which sheds doubt on the
effectiveness of the State lead ban program? Have you brought such
concerns to the State?
These questions may help to focus your review of the State submissions. If, in your
judgement, a State has not demonstrated effective implementation and enforcement of the lead
ban/lead public notification requirements, then five percent of the State's grant should be
withheld.
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3. Mechanisms/Timing for the Regional Determination of Adequate
Implementation and Enforcement and the Resulting Grant Decision
The Region may use whatever mechanism it believes appropriate to obtain the
information from the State and make its determination on the adequacy of the State's lead ban
program. Although the details are left to Regional discretion, the Regions are to begin FY 1990
by making it clear to their States that 5% of the State's FY 1990 PWSS grant is dependent on
adequate implementation and enforcement of the lead ban.
The approach which we would prefer the Regions take would be to negotiate an
acceptable lead ban implementation program with each State and include this program in the
State's FY 1990 workplan. The Region, at the beginning of the fiscal year, would hold 5% of the
State's PWSS grant in reserve, and would inform the State that it will be evaluated on its lead ban
program at midyear evaluations. If the State is adequately implementing the program, it will
receive the remaining 5% of their program grant.
If a Region feels strongly, however, that withholding 5% of the State's grant at the
beginning of the year would damage their relationships with their States, they may award the full
grant and make implementation and enforcement of the lead ban an express condition of the
grant. We suggest the following wording: The State Primacy Agency will implement and
enforce the lead ban and the lead public notification requirements of Section 1417 of the Safe
Drinking Water Act in accord with EPA guidances. If the State Primacy Agency is not the
agency responsible for the lead ban, it will provide EPA with a demonstration that the lead ban
and lead public notification provisions of the SDWA are being implemented and enforced in the
State. If the State fails to perform this task, EPA will withhold (or if all funds have been
awarded, deobligate) 5% of the total amount of the State's grant.
As noted above, the Region may use any mechanism or combination of mechanisms it
believes appropriate to the situation. The FY 1990 Office of Water Accountability System
(OWAS) measures contain an item on the implementation of the lead ban; we will focus on this
during our midyear evaluations of the Regions.
I believe that effective implementation of Section 1417 of the SDWA is critical. It is
essential that the Regions send the right message to their States; that is, that EPA is serious about
enforcement and implementation of the lead ban and that we simply cannot accept a program
which is not meeting the requirements of the SDWA.
I hope that this guidance is useful. I recognize the problems that you are having in trying
to oversee the implementation of Section 1417 and urge you to continue your efforts.
cc: Drinking Water/Groundwater Protection Branch Chiefs
Regions I - X
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