§ 142.10 - Requirements for a determination of primary enforcement responsibility.

§ 142.10 Requirements for a determination of primary enforcement responsibility.

A State has primary enforcement responsibility for public water systems in the State during any period for which the Administrator determines, based upon a submission made pursuant to § 142.11, and submission under § 142.12, that such State, pursuant to appropriate State legal authority:

(a) Has adopted drinking water regulations which are no less stringent than the national primary drinking water regulations (NPDWRs) in effect under part 141 of this chapter;

(b) Has adopted and is implementing adequate procedures for the enforcement of such State regulations, such procedures to include:

(1) Maintenance of an inventory of public water systems.

(2) A systematic program for conducting sanitary surveys of public water systems in the State, with priority given to sanitary surveys of public water systems not in compliance with State primary drinking water regulations.

(3)

(i) The establishment and maintenance of a State program for the certification of laboratories conducting analytical measurements of drinking water contaminants pursuant to the requirements of the State primary drinking water regulations including the designation by the State of a laboratory officer, or officers, certified by the Administrator, as the official(s) responsible for the State's certification program. The requirements of this paragraph may be waived by the Administrator for any State where all analytical measurements required by the State's primary drinking water regulations are conducted at laboratories operated by the State and certified by the Agency. Until such time as the Agency establishes a National quality assurance program for laboratory certification the State shall maintain an interim program for the purpose of approving those laboratories from which the required analytical measurements will be acceptable.

(ii) Upon a showing by an Indian Tribe of an intergovernmental or other agreement to have all analytical tests performed by a certified laboratory, the Administrator may waive this requirement.

(4) Assurance of the availability to the State of laboratory facilities certified by the Administrator and capable of performing analytical measurements of all contaminants specified in the State primary drinking water regulations. Until such time as the Agency establishes a National quality assurance program for laboratory certification the Administrator will approve such State laboratories on an interim basis.

(5) The establishment and maintenance of an activity to assure that the design and construction of new or substantially modified public water system facilities will be capable of compliance with the State primary drinking water regulations.

(6) Statutory or regulatory enforcement authority adequate to compel compliance with the State primary drinking water regulations in appropriate cases, such authority to include:

(i) Authority to apply State primary drinking water regulations to all public water systems in the State covered by the national primary drinking water regulations, except for interstate carrier conveyances and systems on Indian land with respect to which the State does not have the necessary jurisdiction or its jurisdiction is in question.

(ii) Authority to sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of the State primary drinking water regulations.

(iii) Right of entry and inspection of public water systems, including the right to take water samples, whether or not the State has evidence that the system is in violation of an applicable legal requirement.

(iv) Authority to require suppliers of water to keep appropriate records and make appropriate reports to the State.

(v) Authority to require public water systems to give public notice that is no less stringent than the EPA requirements in subpart Q of part 141 of this chapter and § 142.16(a).

(vi) Authority to assess civil or criminal penalties for violation of the State's primary drinking water regulations and public notification requirements, including the authority to assess daily penalties or multiple penalties when a violation continues;

(vii) Authority to require community water systems to provide consumer confidence reports as required under 40 CFR part 141, subpart O.

(c) Has established and will maintain record keeping and reporting of its activities under paragraphs (a), (b) and (d) in compliance with §§ 142.14 and 142.15;

(d) Variances and exemptions.

(1) If it permits small system variances pursuant to Section 1415(e) of the Act, it must provide procedures no less stringent than the Act and Subpart K of this part.

(2) If it permits variances (other than small system variances) or exemptions, or both, from the requirements of the State primary drinking water regulations, it shall do so under conditions and in a manner no less stringent than the requirements of Sections 1415 and 1416 of the Act. In granting these variances, the State must adopt the Administrator's findings of best available technology, treatment techniques, or other means available as specified in Subpart G of this part. (States with primary enforcement responsibility may adopt procedures different from those set forth in Subparts E and F of this part, which apply to the issuance of variances (other than small system variances) and exemptions by the Administrator in States that do not have primary enforcement responsibility, provided that the State procedures meet the requirements of this paragraph); and

(e) Has adopted and can implement an adequate plan for the provision of safe drinking water under emergency circumstances including, but not limited to, earthquakes, floods, hurricanes, and other natural disasters.

(f)

(1) Has adopted authority for assessing administrative penalties unless the constitution of the State prohibits the adoption of such authority. For public water systems serving a population of more than 10,000 individuals, States must have the authority to impose a penalty of at least $1,000 per day per violation. For public water systems serving a population of 10,000 or fewer individuals, States must have penalties that are adequate to ensure compliance with the State regulations as determined by the State.

(2) As long as criteria in paragraph (f)(1) of this section are met, States may establish a maximum administrative penalty per violation that may be assessed on a public water system.

(g) Has adopted regulations consistent with 40 CFR part 3 - (Electronic reporting) if the state receives electronic documents.

(h) An Indian Tribe shall not be required to exercise criminal enforcement jurisdiction to meet the requirements for primary enforcement responsibility.

[41 FR 2918, Jan. 20, 1976, as amended at 43 FR 5373, Feb. 8, 1978; 52 FR 20675, June 2, 1987; 52 FR 41550, Oct. 28, 1987; 53 FR 37410, Sept. 26, 1988; 54 FR 15188, Apr. 17, 1989; 54 FR 52138, Dec. 20, 1989; 63 FR 23367, Apr. 28, 1998; 63 FR 43846, Aug. 14, 1998; 63 FR 44535, Aug. 19, 1998; 65 FR 26048, May 4, 2000; 70 FR 59888, Oct. 13, 2005]