UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Date Signed: September 27, 1991
MEMORANDUM
SUBJECT: Final Guidance On Emergency Authority under Section 1431 of the Safe
Drinking Water Act
FROM: James R. Elder, Director
Office of Ground Water and Drinking Water
Frederick F. Stiehl,
Enforcement Counsel for Water
Office of Enforcement
TO: Water Management Division Directors
Regions I - X
Regional Counsels
Regions I - X
This memorandum transmits the Office of Ground Water and Drinking Water
(OGWDW) and Office of Enforcement (OE) final guidance on invoking EPA's emergency
authority, granted under Section 1431 of the Safe Drinking Water Act (SDWA), to address water
supply hazards. This guidance has been reviewed and received concurrence from the Office of
General Counsel (OGC). This final guidance replaces the EPA December 28, 1976 guidance
(Water Supply Guidance No. 10), entitled "Regional Guidance - Emergency Action on Water
Supply Hazards".
We want to thank the Regions for their thorough review of the draft guidance and
valuable input. A summary of the comments received and our responses is included as an
attachment to this memorandum. If you have any questions regarding this final document,
please call Anne Jaffe Murray in OGWDW on 260-7358 or Alan Morrissey in OE on 260-2855.
Attachment
cc: Regional Drinking Water/Groundwater Protection Branch Chiefs
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GUIDANCE ON INVOKING EMERGENCY AUTHORITY
UNDER SECTION 1431 OF THE SAFE DRINKING WATER ACT
Purpose of Guidance
This guidance is intended to emphasize that Section 1431 has a broad application and
provides EPA with an effective tool for handling public health endangerments concerning public
water supplies (PWSs) and underground sources of drinking water (USDWs). One of the
purposes of this guidance is to encourage a more widespread use of EPA's Section 1431
authority by more fully explaining situations where this authority may be applied. In addition,
this guidance discusses EPA's internal procedures for issuing Section 1431 orders and provides
information on how to support and prepare an order.
Contents
This guidance is organized as follows:
• overview
• Elements of 1431 Authority
• Role of State and Local Authorities
• What Remedial Actions May Be Ordered
• Use of Administrative vs. Judicial orders
• Relationship between Section 1431 and Other EPA Emergency Authorities
• Parties Over Whom Section 1431 Grants EPA Authority Procedure for Issuing a
section 1431 order
• Footnotes
• Attachment 1 - Section 1431 (as amended in 1986)
Attachment 2 - House Report 93-1185
• Attachment 3 - Model Section 1431 Administrative order - PWSS Program
• Attachment 4 - Model Section 1431 Administrative order - PWSS Program
(involving unregulated contaminants)
• Attachment 5 - Model Section 1431 Administrative Order - UIC Program
Disclaimer
This guidance document on the application of EPA's emergency powers under Section
1431 of the SDWA is a statement of Agency policies and principles. It does not establish or
affect legal rights or obligations. This guidance document does not establish a binding norm and
is not finally determinative of the issues addressed. Agency decisions in any particular case will
be made by applying the law and regulations to the specific facts of the Case. The Agency may
take action at variance with this guidance.
Overview
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Introduction
Contaminants may be present in or released into the environment as a result of
inadequate treatment of drinking water by a PWS, a leaking underground storage tank, or failure
of an underground injection (UIC) well, to name a few. These incidents may result in
contamination in or near a PWS or USDW that may pose an "imminent and substantial"
endangerment to human health. Authority granted under SDWA Section 1431, 42 U.S.C.
Section 300(i), gives the Administrator broad powers to take appropriate enforcement action if
he receives information that:
• A contaminant is present in or likely to enter a PWS or USDW, and
• The contaminant may present an "imminent and substantial endangerment" to
human health, and
• The appropriate State and local authorities have not acted to protect public
health.1
The purpose of a Section 1431 action is to prevent an impending dangerous condition
from materializing, or to reduce or eliminate a dangerous situation once it has been discovered.
Section 1431 does not require an emergency in the ordinary sense of the word. Instead, this
provision focuses on "imminent and substantial endangerments" which is a broadly defined
concept (see discussion below). For example, one major function of Section 1431 is its use as a
preventative enforcement measure.2
As an "emergency" provision, however, Section 1431 should not be used as a substitute
for other SDWA provisions, where such other provisions are adequate to protect public health.3
For example, under the Public Water System Supervision (PWSS) Program, violations of
monitoring requirements or even of a maximum contaminant level (MCL) should generally be
addressed through use of the enforcement authorities (including administrative order authority)
in Section 1414. However, if the MCL exceedance may present an imminent and substantial
endangerment, then an emergency action under Section 1431 may be appropriate in addition to
any other SDWA Section 1414 enforcement action. An example under the UIC Program would
be a Class V UIC well operator who is injecting contaminants that may be causing or
contributing to an MCL exceedance or otherwise endangering an USDW. Although this
generally would be enforced as a violation of Section 1423, a Section 1431 action also may be
appropriate if an imminent and substantial endangerment may be present.
1986 Amendments to Section 1431
The SDWA Amendments Of 1986 clarified EPA's existing authority to order the
provision of an alternative water supply by persons who caused or contributed to the
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endangerment. In addition, the 1986 Amendments strengthened EPA's authority to enforce
Section 1431. Previously, Section 1431 provided that EPA could enforce against any person
who "willfully" violates or fails or refuses to comply with a Section 1431 order. The 1986
Amendments removed the term "willfully" enabling EPA to enforce against any persons,
whether or not their actions were willful. Also, the 1986 Amendments clarified EPA's authority
to protect USDWs, as discussed on page 4. (Section 1431, as modified by the 1986 Amendments
is contained in Attachment 1.)
Delegation of Authority
On July 25, 1984 the Administrator delegated the authority to issue administrative orders
under Section 1431 to the Regional Administrators (RAs) and the Assistant Administrator for
Water (Delegation No. 9-17). In some Regions the RA has redelegated this authority to the
division or branch level. The authority to make direct civil judicial referrals under Section 1431
has not been delegated by Headquarters to the Regions.
Elements of Section 1431 Authority
To apply the authority granted under Section 1431, two conditions must be met. First,
the Administrator must have received "information that a contaminant which is present in or
likely to enter a [PWS] or an [USDW] may present an imminent and substantial endangerment to
the health of persons." Second, the Administrator must have received information that
"appropriate State and local authorities have not acted to protect the health of such persons." To
realize the full potential of Section 1431, the key elements of these conditions must be
understood. These elements are: contaminants that are covered under Section 1431, the
definition of "likely to enter", application to PWSS and USDWs, and the definitions of
"imminent" and "substantial". Each element is discussed in greater detail in this section.
Contaminant
Section 1401(6) of the SDWA defines "contaminant" very broadly to include "any
physical, chemical, biological, or radiological substance or matter in water. If under this broad
definition, EPA may take action under Section 1431 even when the contaminant in question is
not regulated by a National Primary Drinking Water Regulation (NPDWR) under the SDWA
(i.e., EPA has not issued a NPDWR for the contaminant or the regulation has been promulgated
but is not yet effective). This authority is clearly supported by the SDWA legislative history.
(See H.R. Rep. No. 1185, 93rd Cong., 2d Sess., 35 - 36. The discussion of section 1431, in this
1974 House Report is shown in Attachment 2 of this guidance.)
Likely to Enter
Application of the Section 1431 authority is not limited to existing contamination of a
PWS or USDW but also may be used to prevent the introduction of contaminants that are "likely
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to enter" drinking water. Thus, Section 1431 Orders should ideally be issued early enough to
prevent the potential hazard from materializing.4
Underground Sources of Drinking Water
EPA's Section 1431 authority is not limited to the protection of PWSS. It also extends to
the protection of all USDWs, whether or not the USDW currently supplies a PWS. The 1986
Amendments clarified EPA's existing authority to protect USDWs by making this authority
explicit in the statute.
The agency has defined "underground sources of drinking water" in 40 CFR Section
144.3. Under this definition, "USDW" includes both aquifers that currently supply a PWS and
those that simply have the potential to supply a PWS (according to the criteria in Section 144.3).5
The ability to address the contamination of USDWs (rather than only PWSS) broadens EPA's
authority in two ways. First, it allows EPA to act under Section 1431 where the groundwater
source in question is only a potential supplier of a PWS. Second, it allows the Agency to protect
private wells that are at risk because of the contamination or threatened contamination of a
USDW.
Imminent and Substantial Endangerment
Assuming EPA can show that a contaminant is "present in or likely to enter" the drinking
water supply (either PWS or USDW), EPA also must show that a contaminant "may present" an
"endangerment" and that the endangerment is both 'imminent and "substantial."
Imminent Endangerment
Section 1431 authorizes EPA to address "endangerments" that are "imminent". The case
law that has developed on these terms (as used in the SDWA or in analogous provisions of other
statutes), together with the SDWA legislative history, suggests the following guidance.
An "endangerment" is not actual harm, but a threatened or potential harm.6 No actual
injury need ever occur.7 Therefore, while the threat or risk of harm must be "imminent" for EPA
to act, the harm itself need not be.8 Public health may be endangered imminently and
substantially both by a lesser risk of a greater harm and by a greater risk of a lesser harm; this
will ultimately depend on the facts of each case.9
An endangerment is "imminent" if conditions which give rise to it are present, even
though the actual harm may not be realized for years.10 Courts have stated that an "imminent
hazard" may be declared at any point in a chain of events which may ultimately result in harm to
the public.11 For example, in U.S. v. Midway Heights County Water District.12 individuals were
exposed to microbiological and turbidity exceedances, but actual illnesses had not yet been
reported. The court found that the presence of organisms that were accepted indicators of the
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potential for the spread of serious disease presented an imminent (and substantial)
endangerment.
Endangerments can more readily be determined to be imminent where they involve
contaminants that pose acute human health threats. Examples include:
• A nitrate MCL violation when a sensitive population is exposed (i.e., infants less
than six months of age)
• A waterborne disease outbreak with or without MCL violations
• A microbiological or turbidity MCL Violation with or without a waterborne
disease outbreak
• Injection of untreated sewage directly into an USDW that is used by a nearby
drinking water well.
However, acute contaminants are not the only ones that might pose an imminent
endangerment. Because an endangerment is created by the risk of harm, not necessarily actual
harm, EPA should determine whether a risk of harm is imminent. Therefore, contaminants that
lead to chronic health effects, such as carcinogens, also may be considered to cause "imminent
endangerment"13 even though there is a period of latency before those contaminants, if
introduced into a drinking water supply, might cause adverse health effects. In the SDWA
legislative history, the House Report specifically states that an imminent endangerment may
result from exposure to a carcinogenic agent.14
Section 1431 should not be used in cases where the risk of harm is remote in time or
completely speculative in nature.15 However, in determining the imminence of a hazardous
condition, EPA may consider the time it may require to prepare orders, to commence and
complete litigation, to implement and enforce administrative or judicial orders to protect public
health, and to implement corrective action under Section 1431.16 For example, even where a
contaminant is not likely to enter a ground water supply for several months or longer (as can be
the case with a ground water plume moving toward a well), EPA may consider this hazard to be
"imminent" in light of the time required to implement the actions described above. Further, even
where a hazardous condition has been present for some time (even years), case law supports the
view that EPA is not prevented from finding that the conditions present an imminent
endangerment.17
In addition, Section 1431 may be used to address threats to health from other than direct
ingestion of drinking water. For example, in U.S. v. Midway Heights County Water District.18
individuals were exposed to bacteriological and turbidity contamination. The court determined
that although the water primarily was not used for drinking water, an imminent and substantial
endangerment existed from "human consumption" through such normal uses as bathing,
showering, cooking, dishwashing, and oral hygiene.
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The term "substantial endangerment" can apply range of existing or threatened hazards
and should not be limited to extreme circumstances. One court, interpreting "substantial
endangerment" as used in CERCLA, has stated that "the word 'substantial' does not require
quantification of the endangerment (e.g.. proof that a certain number of persons will be exposed,
that 'excess deaths' will occur, or that a water supply will be contaminated to a specific
degree)."19 Instead, the court found, an endangerment is substantial if there is a reasonable cause
for concern that someone may be exposed to a risk of harm. The court stated that a number of
factors (e.g., the quantities of CERCLA hazardous substances involved, the nature and degree of
their hazards, or the potential for human exposure) may be considered in determining whether
there is a reasonable cause for concern, but in any given case, one or two factors may be so
predominant as to be determinative of the issue.21 Of course, the emergency authority of Section
!431 should not be used in cases where the risk of harm is completely speculative in nature or is
de minimis in degree.21
House Report 93-1185 gives the following examples of what may be considered a
"substantial" endangerment:
• "a substantial likelihood that contaminants capable of causing adverse health
effects will be ingested by consumers if preventative action is not taken"
• "a substantial statistical probability exists that disease will result from the
presence of contaminants in drinking water"
• "the threat of substantial or serious harm (such as exposure to carcinogenic agents
or other hazardous contaminants).22
Role of State or Local Authority
One of the crucial requirements of a Section 1431 enforcement action is that "appropriate
State and local authorities have not acted to protect the health of such persons." One court has
held that the receipt of such information is a jurisdictional prerequisite to action under this
section.23 Accordingly, Section 1431 should not be used to deal with problems that are being
handled effectively by State or local governments (including Tribal governments) in a timely
fashion.24
The Regions should not view this standard - whether a State or local authority has acted
to protect the health of persons as an issue of whether these authorities have "failed" to protect
public health. Instead, these authorities intentionally may defer action to EPA because the
Section 1431 authority may be more powerful or expeditious. In addition, the State or local
authorities may not have acted because they lack jurisdiction, as may be the case with actions
involving Tribal entities. Further, State or local authorities may decide to take action jointly
with EPA. In such cases, EPA would determine that State and local authorities have not acted
(on
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their own) to protect the health of persons. Therefore, EPA may proceed with Section 1431
actions when State and local authorities are working jointly with EPA.
Section 1431 also provides that prior to taking action and to the extent practicable in light
of the imminent endangerment, EPA shall consult with the State and local authorities to confirm
the information on which EPA is basing the proposed action and to determine what action the
State and local governments are taking or will take. Under Section 1431, then, it is not
mandatory to consult with the State and local authorities (i.e., they should be contacted "to the
extent practicable"). Nevertheless, the Regions should be aware that EPA will need a basis in
the record for the finding in the Section 1431 Order that State and local authorities "have not
acted to protect the health of persons." The Regions should ensure, therefore, that there is a
written basis in the record for this finding. This written basis could be simply a log of a
telephone conversation or correspondence between EPA and the State and local authorities.
If EPA has information that State/local agencies are going to act, EPA must decide
whether the action is timely and protective of public health. If EPA determines that the action is
insufficient and State and local agencies do not plan to take stronger or additional actions to
ensure public health protection, in a timely way, EPA should proceed with an action under
Section 1.431.25
Unlike under Section 1414 or 1423, a notice of violation (NOV) need not be issued prior
to taking a Section 1431 action. Note that, because Section 1431 applies to threatened as well as
existing harm, a regulatory violation may not yet exist at the time EPA issues the Section 1431
Order. An NOV, even if issued, would not be a means of consulting with the State and local
authorities to determine whether they have acted in a timely and appropriate manner to protect
the health of persons. An NOV serves only as a means of informing the State, PWSS, or UIC
owner or operator of EPA's intention to take an action. However, the Region may want to issue
an NOV (in addition to a Section 1431 order) as part of developing a separate enforcement
action under Section 1414 or 1423.
The Regions should note that they need to determine that both State and local authorities
have failed to act before bringing a Section 1431 action. The State can be of assistance to EPA
in making this determination because the State should be able to identify the appropriate local
authorities and may be aware of whether these authorities have taken any actions.
Remedial Actions That May Be Ordered
Once EPA determines that action under Section 1431 is needed, a very broad range of
options is available. The statute provides that EPA may take actions as may be necessary to
protect the health of persons. Moreover, EPA may take such actions notwithstanding any
exemption, variances permit, license, regulation, order, or other requirement that would
otherwise apply.26
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The actions that EPA may take may include (but are not limited to):27
• issuing orders as necessary to protect the health of persons who are or may be
users of such system (including travelers), including orders requiring:
the provision of alternative water supplies, at no cost to the consumer, by
persons who caused or contributed to the endangerment (e.g., provision of
bottled water, drilling of new well[s], connecting to an existing PWS)
information about actual or impending emergencies
public notification of hazards (e.g., door-to-door, posting, newspapers,
electronic media)
a study to determine the extent of the contamination, including inventory
and monitoring of PWSS and private wells or ground water
an engineering study proposing a remedy to eliminate the endangerment
and a timetable for its implementation
the halting of the disposal of contaminants that may be contributing to the
endangerment.
Commencing a civil action for appropriate relief including a restraining
order, or a temporary or permanent injunction. The injunction would
require the PWS, UIC well owner or operator, or the responsible party to
take steps to abate the hazard.
Use of Judicial vs. Administrative Orders
The Region will need to choose between a Section 1431 administrative order or a civil
judicial action. A civil referral will be preferable to a Section 1431 administrative order if the
Region believes the responsible party will be uncooperative or recalcitrant or if the necessary
relief is long-term or otherwise appropriate for supervision by a U.S. District Court. Because all
1431 referrals are indirect, the Region must first transmit them to the Office of Ground Water
(OGWDW) and Office of Enforcement (OE) for concurrence before sending them to the
Department of Justice (DOJ). Headquarters will review and obtain the necessary concurrences
as quickly as possible.
If immediate relief is necessary, an expedited referral is possible through the use of a
telephone referral. The Region should send (via FAX) a very brief memorandum describing the
problem, the potential or actual health effects, and the action required by the identified parties to
Headquarters (OGWDW and OE) and DOJ. Upon receipt of the information, Headquarters will
arrange a conference call with all involved parties and obtain necessary concurrences as soon as
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possible. Please note that DOJ has filed a complaint and a motion for a temporary restraining
order in as little as one day.
A Section 1431 administrative order offers EPA some unique powers. Unlike
compliance orders, Section 1431 Orders enable the Agency (versus the courts) to order actual
injunctive-type relief. This relief is limited only by the usual constraints of the Administrative
Procedures Act (APA). These require all Agency actions be reasonable and not "arbitrary or
capricious".27 Thus, by issuing an administrative order instead of filing a civil judicial action,
the Agency rather than the District Court determines the scope and timing of appropriate relief in
the first instance.
The recipients of the administrative order may challenge the terms of the order. Under
the judicial review provisions of Section 1448 of the SDWA, however, the petition must be filed
within 45 days in the appropriate Court of Appeals (a District Court does not have jurisdiction
to hear challenges to the administrative order). If the recipient fails to meet this condition, he
loses all rights to contest the terms of the order.
Any enforcement actions to require compliance with an administrative order or to seek
civil penalties for its violation must be in District Court. A recipient who violates or fails or
refuses to comply with the terms of the administrative order, may be subject to a civil penalty of
not more than $5,000 for each day in which the violation occurs or failure to comply continues.28
Relationship between Section 1431 and Other EPA Emergency Authorities
A Section 1431 order can be taken in conjunction with emergency orders under other
statutes. Emergency provisions exist under:
• Resource Conservation and Recovery Act (RCRA) - Section 7003
• Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) - Section 106
Clean Water Act - Sections-504(a) and 311
• Toxic Substances Control Act - Section 7
Clean Air Act (CAA) - Sections 112(r)(9) or 303
Although similar in general terms, each of the emergency provisions of these statutes is
somewhat different. (Guidance on EPA's authority to address imminent and substantial
endangerment under CERCLA, RCRA, and CAA has been issued by the Agency.)29 For
example, Section 7003 of RCRA is very broad in that it allows for protection of the
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"environment". However, it is somewhat limited in that the threat must be caused by a "solid
waste".
Section 1431, on the other hand, is limited to the protection of a PWS or an USDW, but
covers a broad universe of "contaminants". It is generally recommended that the Regions issue
joint orders under more than one of these statutory authorities, when possible, in order to
maximize the Agency's authority and minimize the risk of successful judicial challenge.
However, if the order is being unduly delayed by coordination difficulties, the Region should
proceed with the Section 1431 order, followed by an order under the other statute or statutes.
An important exception to this recommendation is that it may be inadvisable to combine
a CERCLA Section 106 or RCRA Section 7003 order with a SDWA Section 1431 order. One
advantage of the CERCLA and RCRA orders is that they generally are not subject to "pre-
enforcement" judicial review. That is, recipients of a CERCLA or RCRA order generally may
not challenge that order in a court at the time they receive it, but must wait until EPA brings a
court action to enforce the order. In contrast, SDWA Section 1431 orders generally are subject
to "pre-enforcement" judicial review. Because "pre-enforcement" review of the Section 1431
portion of the order would be available, the Agency's ability to avoid "pre-enforcement" review
of the rest of the order (i.e.. the portions issued under CERCLA or RCRA authorities) might be
jeopardized. However, if the Region is reasonably confident that it will enforce the order
expeditiously if the recipient refuses to comply, this issue may not arise.
Because of the importance of this issue, the Regions should not issue a SDWA Section
1431 order jointly with a CERCLA Section 106 or RCRA Section 7003 order without first
consulting Office of General Counsel (OGC) and OE.
Parties over Whom Section 1431 Grants EPA Authority
Section 1431 by its terms gives EPA broad discretion to issue any orders necessary to
protect the health of persons. EPA may issue Section 1431 Orders not only to an owner or
operator of a PWS, but also, for example, to State or local government units, State or local
officials, owners or operators of underground injection wells, area or point source polluters, or to
any other person whose action or inaction requires prompt regulation to protect public health.30
This authority authorizes the issuance of an order to a Tribal Government or Federal agency. (If
the order involves a Tribal entity, the Region should consult the Agency's Indian policy and
advise the Office of Federal Activities of orders issued against Federal facilities.)
In cases where the responsible party is not clearly known, the order should be issued to
the most likely contributor(s) based on the type of contaminant(s) found in the PWS and/or
USDW compared to current and past land practices in the area. As part of the order, EPA can
require that a study be performed to more clearly determine the responsible parties. An example
is a PWS which is contaminated with benzene, toluene, and xylene. Five gasoline service
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stations are located near the PWS. An order could require each of the service stations to test for
leaks in their underground storage tanks.
EPA may even use Section 1431 authority to reach parties that are not responsible for the
endangerment. orders to a nonresponsible party ordinarily should be limited to those instances
where no responsible party exists or is suspected and the issuance of an order to a nonresponsible
party is the most appropriate means to protect or mitigate the endangerment. For example, an
order may require a PWS, contaminated by unknown polluters, to filter or relocate its water
source.
Procedure for issuing a Section 1431 Order
Components of a Civil Order
Administrative
The recommended basic components of an administrative 1431 Order are:
EPA's Statutory Authority
• Findings of Fact
• Conclusions of Law
• Conditions (or Actions) Ordered by the Emergency Order - (Should also contain a
statement that requires the respondent to advise the Agency of his intentions to
comply with the terms of the order in a specified short time frame, e.g, 72 hours).
• Name and Address of EPA Contact
Attachments 3 and 4 are examples of Section 1431 administrative orders for the PWSS Program.
Attachment 5 is an example of a Section 1431 administrative order for the UIC Program.
Components of a 1431 Order
Civil Judicial
If a judicial order is sought, the Agency must still determine that an "imminent and
substantial endangerment" exists. This should be done through a written determination or
affidavit, provided by the RA or delegates, that the conditions that support the need for an action
under Section 1431 have been met.
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Degree of Support
Development of a Record
The issuance of a Section 1431 Order is an administrative action that must be supported
by an adequate written record in order to survive a potential judicial challenge. Therefore, the
Regions should ensure that the findings of fact in the order are adequately supported by
documents in the record showing the basis for EPA's technical determinations. Similarly, before
bringing a judicial action under Section 1431, Regions should ensure that sufficient information
has been compiled and can be presented to a court to support the action. This information would
take the form of technical documents, other background materials, and memoranda to the file.
EPA also may need to present information in the form of affidavits from the responsible EPA
officials.
Absolute Proof Not Required
Even though EPA should strive to create a record basis to support its Section 1431
actions, the Regions should recognize that EPA does not need uncontro verted proof that
contaminants are present in or likely to enter the water supply or that an imminent and
substantial endangerment may be present before taking action under Section 1431.31 Similarly,
EPA does not need uncontroverted proof that the recipient of the order is the person responsible
for the contamination or threatened contamination. Courts generally will give deference to
EPA's technical findings of imminent and substantial endangerment. The purpose of Section
1431 actions is to prevent harm from occurring. Extensive efforts to document the available
information should be avoided, where the delay in obtaining such information or proof could
impair attempts to prevent or reduce the hazardous situation. The Region may use, for example,
sampling data from public and/or private wells, the exceedance of the unreasonable risk to health
(URTH) level, data from toxicological studies, and the opinion of a toxicologist or other expert
as evidence that an "imminent and substantial endangerment" may exist.
State and Local Authorities Have Not Acted
As stated previously, before taking an action under Section 1431, EPA must receive
information that demonstrates that State and local authorities have not acted to protect public
health. The Region should have a written basis for this finding, which may consist of a
telephone log or written communications), that serves to document contact between EPA and
State and local authorities.
Headquarters Contact
The Region is not required to receive concurrence from Headquarters before issuing an
administrative Section 1431 Order. However, the Region may elect to receive advice from
Headquarters prior to issuing the order, especially those Regions with no or little experience in
issuing section 1431 Orders. OGWDW and OE, as in the past, are committed to providing
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feedback to the Regions within 48 hours. Consulting in advance with Headquarters program
staff, OE and OGC may protect against subsequent adverse judicial determinations. In
particular, due to issues of "pre-enforcement" judicial review as discussed previously, the
Regions should not issue a SDWA Section 1431 Order jointly with a CERCLA Section 106 or
RCRA Section 7003 Order without first consulting OGC and OE.
Headquarters has not delegated the authority under Section 1431 to the Region for a
judicial referral. The Region must submit a Section 1431 civil judicial order to OE and
OGWDW for concurrence. OE and OGWDW also will strive to provide feedback within 48
hours for any expedited judicial referral. If however, the referral under Section 1431 is not of an
"emergency nature" (i.e., has not been expedited), the referral will be processed in the usual 35-
day period.
Regardless of whether the Region prepares an administrative or civil judicial order, OE
and OGWDW request that the Region submit copies of all final orders for their central files.
No Citizen Suits Under Section 1431
SDWA authorizes citizens suits against EPA when the Agency has failed to take actions
that are mandatory under the statute. Because EPA's authority to take action under Section 1431
is discretionary, citizen suits to compel EPA to take action under 1431 are not authorized.32
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FOOTNOTES
1 Section 1431, 42 U.S.C. Section 300(i) (emphasis added).
2 H.R. Rep. No. 1185, 93 rd Cong., 2d Sess., 35-36, reprinted in, 1974 U.S. Code Cong, &
Ad. News 6454, 6488 ("H.R. 93-1185"). The preventative intent of Section 1431 is
apparent in the legislative history, which states:
the Committee intends that this language be construed by the courts and
the Administrator so as to give protection of the public health. Administrative
and judicial implementation of this authority must occur early enough to prevent
the potential hazard from materializing.
3 Id. H.R. 93-1185, at 36, states that "section 1431 reflects the Committee's determination
to confer completely adequate authority to deal promptly and effectively with emergency
situations which jeopardize the health of persons." The Report further states that the
administrative authority of Section 1431 should "not be used when the system of
regulatory authority provided elsewhere in the bill could be used adequately to protect
the public health." Id.
4 See Id. at 35-36.
5 While "USDW" is not defined in the statute, SDWA Section 1421(d) makes it clear that
the statute protects a broad category of waters. This section states that "[underground
injection endangers drinking water sources if such injection may result in the presence of
ground water which supplies or can be reasonably expected to supply any public water
system of any contaminant..." (emphasis added).
6 U.S. v. Conservation Chemical Co.. 619 F. Supp. 162, 192 (W.D. Mo. 1985) (interpreting
the term "endangerment" in CERCLAX citing Ethyl Corp. v. EPA. 541 F.2d 1, 18 (D.C.
Cir. 1976), (en bane), cert, denied. E.I, du Pone de Nemours & Co. v. EPA. 426 U.S. 941
(1976) (interpreting the language "will endanger" in the Clean Air Act).
7 See Ethyl Corp. v. EPA. 541 F.2d at 13.
8 See U.S. v. Reillv Tar and Chemical Corp.. 546 F. Supp. 1100, 1109-10 (D. Minn. 1982),
quoting H.R. 93-1185: U.S. v. Conservation Chemical Co.. 619 F. Supp. at 193-94. The
CCC court, construing similar language in CERCLA, stated that the standard is
especially lenient since it authorizes action "when there may be risk of harm, not just
when there is a risk of harm." Id. at 193 (emphasis in original).
9 See Ethyl Corp. v. EPA. 541 F.2d at 18.
10 See U.S. v. Conservation Chemical Co.. 619 F. Supp at 193-94: B.F. Goodrich v. Murtha.
697 F. Supp. 89, 96 (CERCLA action).
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11 Dague v. City of Burlington. 935 F.2d 1343, 1356, (2d Cir. 1991); U.S. v. Ottati & Gross.
Inc.. 630 F. Supp. 1361, 1394 (D.N.H. 1985).
12 695 F. Supp. 1072, 1076 (E.D. Cal. 1988).
13 See Conservation Chemical Co.. 619 F. Supp. at 194, citing legislative history of RCRA
Section 7003.
14 See H.R. 93-1185 at 36. This view is underscored by the numerous other references in
the legislative history to the discovery of carcinogens and potential carcinogens in an
ever increasing number of water supplies. 1974 House Report, supra, at 6, 10-11, 35;
120 Cong. rec. H10789, H 19793-94, H10798-99, H10801-02 (daily ed. Nov. 19, 1974).
This concern was reiterated and strengthened in subsequent Congressional reviews of the
SDWA program. House Comm. on Interstate and Foreign Commerce, H.R. Rep. No. 96-
186, 96th Cong., 1st sess. 4-6 (1979), and Senate Comm. on Environment and Public
Works, S. Rep. No. 96-161, 96th Cong., 1st Sess. 3 (1979).
15 This interpretation is supported by H. Rep. 93-1185.
16 See Id; See B.F. Goodrich v. Murtha. 697 F. Supp. 89, 96 (CERCLA action, quoting H.
Rep. 93-1185).
17 See In Re FCX. Inc.. 96 B.R. 49, 55 (Bkrtcy., E.D.N.C. 1989) ("even when there is an
inordinate delay [by EPA], the court must find an immediate danger to public health if in
fact one exists").
18 695 F. Supp. 1072, 1076 (E.D. Cal. 1988).
19 Conservation Chemical Co.. 619 F. Supp. at 194.
20 Id-
21 See H.R. 93-1185 at 35.
22 H.R. 93-1185 at 36.
23 United States v. Occidental Petroleum Corp.. No. 79-989 (E.D. Cal. 1980).
24 See H.R. Rep. 93-1185 at 36. This implements legislative intent expressed in House
Report 93-1185 to "direct the Administrator to refrain from precipitous preemption of
effective State of local emergency abatement efforts."
25 Congressional reports and floor debates support the view that Congress inserted this
language in Section 1431 (and added certain procedural prerequisites before allowing
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Federal enforcement in a primacy State) simply to avoid duplication between the Federal
and State enforcement and to preserve the primary responsibility for protecting the public
at the State and local levels. Id. at 22-34, 35; S. Rep. No. 93-231, 93rd Cong., 1st Sess. 9,
10 (1973); 120 Cong. Rec. H10789, H10793-94 (daily ed. Nov. 19, 1974); 120 Cong.
Rec. S20241-42 (daily ed. Nov. 26, 1974).
26 The legislative history supports this view. See H.R. Rep. 1185, at 35-36.
27 See Id. The House Report specifically mentions a number of these listed action as among
those EPA may take.
28 SDWA Section 143l(b).
29 Guidance on CERCLA Section 106(a) Unilateral Administrative Orders for Remedial
Designs and Remedial Actions. U.S. EPA, OSWER Directive No. 9833.0-la, March 13,
1990.
Guidelines for Using the imminent Hazard. Enforcement and Emergency Response
Authorities of Superfund and Other Statutes. U.S. EPA, May 13, 1982; Final Revised
Guidance Memorandum on the Use and Issuance of Administrative Orders Under Section
7003 of the Resource Conservation and Recovery Act (RCRA). U.S. EPA, September 26,
1984.
Guidance on Using Order Authority under Section 112(W9) of the Clean Air Act, as
Amended, and on Coordinated Use with Other Order and Enforcement Authorities. U.S.
EPA, April 17, 1991.
30 See H.R. 93-1185 at 35.
31 See U.S. v. Conservation Chemical Co.. 619 F. Supp. at 193 (because of scientific and
medical uncertainties, proof with certainty is impossible).
32 See U.S. v. Hooker Chemicals & Plastics Corp.. 101 F.R.D. 451, 455 (W.D.N.Y. 1984).
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ATTACHMENT 1
Citation from 42 USC 330i, (SDWA Section 1431)
SEC. 1431. (a) Notwithstanding any other provision of this title, the Administrator, upon
receipt of information that a contaminant which is present in or is likely to enter a public water
system or an underground source of drinking water may present an imminent and substantial
endangerment to the health of persons, and that appropriate State and local authorities have not
acted to protect the health of such persons, may take such actions as he may deem necessary in
order to protect the health of such persons. To the extent he determines it to be practicable in
light of such imminent endangerment, he shall consult with the State and local authorities in
order to confirm the correctness of the information on which action proposed to be taken under
this subsection is based and to ascertain the action which such authorities are or will be taking.
The action which the Administrator may take may include (but shall not be limited to) (1)
issuing such orders as may be necessary to protect the health of persons who are or may be users
of such system (including travelers), including orders requiring the provision of alternative water
supplies by persons who caused or contributed to the endangerment, and (2) commencing a civil
action for appropriate relief, including a restraining order or permanent or temporary injunction.
(b) Any person who violates or fails or refuses to comply with any order issued by the
Administrator under subsection (a)(l) may, in an action brought in the appropriate United States
district court to enforce such order, be subject to a civil penalty of not to exceed $5,000 for each
day in which such violation occurs or failure to comply continues.
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