[Federal Register Volume 63, Number 81 (Tuesday, April 28, 1998)]
[Rules and Regulations]
[Pages 23362-23368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11260]
[[Page 23361]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 141 and 142
Revisions to State Primacy Requirements To Implement Safe Drinking
Water Act Amendments; Final Rule
Federal Register / Vol. 63, No. 81 / Tuesday, April 28, 1998 / Rules
and Regulations
[[Page 23362]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 141 and 142
[FRL-6003-5]
RIN-2040-AD00
Revisions to State Primacy Requirements To Implement Safe
Drinking Water Act Amendments
AGENCY: Environmental Protection Agency.
ACTION: Final rule; interpretation.
-----------------------------------------------------------------------
SUMMARY: Today's action amends the regulations that set forth the
requirements for States to obtain and retain primary enforcement
authority (primacy) for the Public Water System Supervision (PWSS)
program under section 1413 of the Safe Drinking Water Act (SDWA) as
amended by the 1996 Amendments. This rule adds the new administrative
penalty authority requirement that States must meet in order to obtain
or retain primacy, plus changes the timing for a State to adopt new or
revised drinking water regulations. The rule also changes a State's
primacy status while awaiting a final determination on its primacy
application. Additionally, the rule's language provides examples of
circumstances that require an emergency plan for the provision of safe
drinking water. Lastly, this action expands the definition of a public
water system (PWS). Since all of the above changes are merely a
codification of the amended SDWA, the Agency is publishing this
document as a final rule.
DATES: This action is effective April 28, 1998 except for Sec. 142.11
which contains information collection requirements that have not yet
been approved by Office of Management and Budget (OMB). EPA will
publish a document in the Federal Register announcing the effective
date of Sec. 142.11
FOR FURTHER INFORMATION CONTACT: The Safe Drinking Water Hotline, toll
free (800) 426-4791, or Jennifer Melch; Regulatory Implementation
Branch; Office of Ground Water and Drinking Water; EPA (4606), 401 M
Street, S.W., Washington, DC 20460; telephone (202) 260-7035.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are those which have
primary enforcement authority for the PWSS program and those which meet
the criteria of the PWS definition. Regulated categories and entities
include:
------------------------------------------------------------------------
Examples of regulated
Category entities
------------------------------------------------------------------------
Industry.................................. Public Water Systems.
State Government.......................... Agencies with primary
enforcement authority for
the PWSS program.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your entity is regulated by this action, you should carefully examine
the applicability criteria in Secs. 141.2, 142.2, and 142.10 and the
applicability criteria in Secs. 142.3 and 142.10 of title 40 of the
Code of Federal Regulations. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
Table of Contents
A. Summary and Explanation of Today's Action
1. Administrative Penalty Authority
2. Interim Primacy Authority
3. Time Increase for Adopting Federal Regulations
4. Examples of Emergency Circumstances That Require a Plan for
Safe Drinking Water
5. Revision of Public Water System Definition
B. Impact of These Revisions
1. Executive Order 12866
2. Regulatory Flexibility Act
3. Paperwork Reduction Act
4. Unfunded Mandates Reform Act
5. Executive Order 13045--Protection of Children From
Environmental Health Risks and Safety Risks
6. Submission to Congress and the General Accounting Office
7. National Technology Transfer and Advancement Act
8. Administrative Procedure Act
A. Summary and Explanation of Today's Action
40 CFR part 142, subpart B, sets out requirements for States to
obtain and/or retain primacy for the Public Water System Supervision
(PWSS) program as authorized by section 1413 of the Safe Drinking Water
Act (SDWA). The Safe Drinking Water Act Amendments of 1996 created an
additional requirement for States to obtain and/or retain primacy for
the PWSS program. Section 1413(a)(6) requires States to have
administrative penalty authority. Today's rule adds a provision to
Sec. 142.10 incorporating this new requirement. Because questions have
arisen on the meaning of section 1413(a)(6), today's preamble sets
forth EPA's interpretation of this section.
The addition of section (e) in Sec. 142.12 of this rule is also due
to the 1996 Amendments. Section 142.12(e) explains that when a State
with primacy for all existing national primary drinking water
regulations submits a primacy revision application, the State is
considered to have primary enforcement authority for the new or revised
regulation while EPA makes a final determination on the application.
Additionally, the Agency is making revisions to Sec. 142.10(e) to
reflect the 1996 Amendments by adding examples of emergency situations
and to Sec. 142.12(b) by changing the time limitation for adopting new
or revised Federal regulations. Finally, the Agency is revising the
definition of a public water system in both Parts 141 and 142 to codify
changes to the statutory definition. The new definition includes
certain systems that provide water for human consumption through
constructed conveyances other than pipes.
1. Administrative Penalty Authority
Section 1413 of the SDWA sets out the conditions under which States
may apply for, and retain, primary enforcement responsibility with
respect to PWSs. As amended in 1996, section 1413 now requires States
to have administrative penalty authority for all violations of their
approved primacy program, unless prohibited by the State constitution.
This encompasses applicable requirements in parts 141 and 142
including, but not limited to, NPDWRs, variances and exemptions, and
public notification. This includes administrative penalty authority for
violations of any State requirements that are more stringent than the
analogous Federal requirements on which they are based. However, States
are not required to have administrative penalty authority for
violations of State requirements that are broader in scope than the
federal program, or unrelated to the approved program.
States must have the authority to impose administrative penalties
on PWSs serving a population greater than 10,000 individuals in an
amount that is not less than $1,000 per day per violation. For PWSs
serving a population of 10,000 individuals or less, States must have
the authority to impose an administrative penalty that is ``adequate to
ensure compliance.'' However, States may establish a maximum limitation
on the total
[[Page 23363]]
amount of administrative penalties that may be imposed on a PWS per
violation.
Statutory Language
Section 1413 of the SDWA provides that a State will have primary
enforcement responsibility for PWSs during any period for which the
Administrator determines that the State meets the requirements of
section 1413(a) as implemented through EPA regulations. One of the new
conditions added for primacy is section 1413(a)(6), which requires that
a primacy State:
(6) Has adopted authority for administrative penalties (unless the
constitution of the State prohibits the adoption of the authority) in a
maximum amount--
(A) In the case of a system serving a population of more than
10,000, that is not less than $1,000 per day per violation; and
(B) In the case of any other system, that is adequate to ensure
compliance (as determined by the State);
except that a State may establish a maximum limitation on the total
amount of administrative penalties that may be imposed on a public
water system per violation.
Interpretation of ``In a Maximum Amount * * * That is Not Less Than
$1,000 Per Day Per Violation''
The first issue for clarification is the meaning of requiring
States to have administrative penalty authority ``in a maximum amount *
* * that is not less than $1,000 per day per violation.'' Relying on
both the legislative history of the 1996 SDWA Amendments and the
principles of statutory construction, EPA has interpreted the provision
as discussed in the following paragraphs.
The report on Senate Bill (SB)1316 says, in explaining this
provision, that States are to adopt administrative penalties of at
least $1,000 per day per violation for large systems. Since the
language in the House Bill and in the final version of the SDWA
amendments is identical to that in SB1316, and there is no additional
explanation of this language, the report on SB1316 is a helpful
indicator of Congressional intent.
Therefore, it is EPA's position that, in order to have primacy,
States must have the authority to impose a maximum penalty per day per
violation for systems serving a population greater than 10,000
individuals and this maximum must be $1,000 or greater. It is critical
that States have the authority to impose this penalty. However, States
are not required to assess this per day per violation penalty for
systems serving a population of more than 10,000 individuals. In
particular cases, States may assess lesser penalties than the maximum
penalty authorized by the State, so long as they retain the authority
to impose a penalty of at least $1,000 per day per violation.
A State's penalty authority must be ``per day per violation.'' If a
State has authority for administrative penalties up to a specific
dollar amount (in total, or as per day, or per violation), but the
authority is not expressed as an amount ``per day per violation,'' then
the authority is not sufficient to comply with this requirement.
Although not required to do so, a State may establish an
administrative penalty cap. If a State establishes a cap, the cap
cannot be on the total administrative penalty which may be imposed on
the system but may only be on the total which may be imposed on the
system ``per violation.'' For example, a State could obtain authority
for administrative penalties of $1,000 per day per violation, not to
exceed $25,000 for each violation. If a PWS in that State had 3 maximum
contaminant level violations, each of which lasted a month, the system
could be assessed an administrative penalty of $75,000. (This would be
calculated as follows: The PWS had 3 violations at $1,000 per day x
30 days for each violation; thus, the system could be assessed $90,000,
if there was no cap. However, because the State has established a cap
of $25,000 for each violation, the PWS could only be assessed the
maximum for each violation--$25,000 x 3 = $75,000).
Interpretation of ``Adequate To Ensure Compliance''
The next area subject to interpretation is what penalty is
``adequate to ensure compliance'' for systems serving a population of
10,000 or fewer individuals. This provision is designed to give the
States flexibility in dealing with the smaller systems. The provision
recognizes that some of the smaller systems face special challenges in
complying with the requirements of the SDWA and its regulations and may
not have the financial capability to pay a large penalty. Moreover,
with some of the small and very small systems, a modest penalty can
serve as a great deterrent. In addition, assessing modest penalties
often requires less burdensome hearing procedures and thus can be more
efficient. At the same time, however, it must be remembered that a good
portion of the small systems are, in fact, profit-making businesses and
therefore should not be permitted to gain an economic advantage through
their noncompliance with the law. Given these factors, as well as many
others, States must determine, for systems serving a population of
10,000 individuals or less, a level or levels of administrative
penalties which will, in their opinion, ensure compliance. The level
can be the same as that for the larger systems.
Determination of State Administrative Penalty Authority
As a part of the primacy application review process, EPA will
review the State laws and regulations to determine whether the State
has the requisite administrative penalty authority or whether its
constitution prohibits the adoption of such authority. States must
submit copies of their laws and regulations; States that believe that
their constitution prohibits administrative penalty authority must
submit a copy of their constitution and an interpretation from the
State Attorney General. EPA's review will likely also include a request
for a State Attorney General to provide an interpretation of the
State's authority. The Attorney General's statement will be needed
particularly in cases where the State laws or regulations use different
language than the SDWA. EPA will also require States to submit a
rationale for their determination that the chosen level of
administrative penalty authority for PWSs serving a population of
10,000 individuals or less is appropriate. Additionally, EPA may
request an explanation from the States on how they plan to use their
penalty authority (that is, a penalty policy). In today's rule, EPA is
amending 40 CFR 142.11 to clarify the documentation States must provide
for EPA's review of State administrative penalty authority.
Process for Review and Approval of State Programs
The process EPA will use to review and approve State programs will
vary based on the circumstances. In cases where the State has adequate
administrative penalty authority that is already part of an approved
primacy program, no formal process under Part 142 is required to
approve the program. In situations where either the State has adequate
administrative penalty authority but it is not part of an approved
primacy program, or where the State administrative penalty authority is
not adequate to meet the new requirement, the State must follow the
process for primacy program revisions in 40 CFR 142.12.
If or when it becomes clear that a State is not going to obtain the
required authority, or if the State is not acting in good faith to
obtain the required authority, EPA will seek to begin the primacy
withdrawal process under 40
[[Page 23364]]
CFR 142.17. There are serious consequences if a State loses primacy,
including the loss of Drinking Water State Revolving Fund (DWSRF)
monies.
2. Interim Primacy Authority
EPA has added new Sec. 142.12(e) to incorporate the new process
identified in the 1996 Amendments for granting primary enforcement
authority to States while their applications to modify their primacy
programs are under review. Previously, States that submitted these
applications did not receive primacy for the changes in their State
programs until EPA approved the applications. The new process, which is
available only to States that have primacy for every existing national
primary drinking water regulation in effect when the new regulation is
promulgated, grants interim primary enforcement authority for a new or
revised regulation during the period in which EPA is making a
determination with regard to primacy for that new or revised
regulation. This interim enforcement authority begins on the date of
the primacy application submission or the effective date of the new or
revised State regulation, whichever is later, and ends when EPA makes a
final determination. Interim primacy has no effect on EPA's final
determination and States should not assume that their applications will
be approved based on this interim primacy.
3. Time Increase for Adopting Federal Regulations
EPA has amended the language in Sec. 142.12(b) to increase the time
for a State to adopt new or revised Federal regulations from 18 months
to 2 years to reflect section 1413(a)(1) as revised by the 1996
Amendments.
4. Examples of Emergency Circumstances That Require a Plan for Safe
Drinking Water
The Agency has added examples of natural disasters to
Sec. 142.10(e) to maintain consistency and uniformity with the
statutory counterpart section 1413(a)(5), which was revised in the 1996
Amendments.
5. Revision of Public Water System Definition
Public water systems, unless they meet the four criteria enumerated
in section 1411 or qualify for a variance or exemption under sections
1415 or 1416, must comply with the national primary drinking water
regulations promulgated in 40 CFR Part 141. Before the 1996 Amendments,
the SDWA defined a PWS as a system that provided piped water for human
consumption to the public and had at least fifteen service connections
or regularly served at least twenty-five individuals. The 1996
Amendments expanded the means of delivering water to include not only
systems which provide water for human consumption through pipes, but
also systems which provide water for human consumption through ``other
constructed conveyances.'' In today's rule, EPA codifies this change by
amending the definition of ``public water system'' in Secs. 141.2 and
142.2 as well as by adding or clarifying several other definitions.
The 1996 Amendments did not change the connections or users served
requirement. However, water suppliers that became PWSs only as a result
of the changed definition will not be considered PWSs, subject to SDWA
requirements, until after August 5, 1998.
``Service Connection'' Exclusions
For systems which only could become PWSs as a result of the
broadened definition, the Amendments allow certain connections to be
excluded, for purposes of the definition, if the water supplied by that
connection meets any of the three criteria enumerated in section
1401(4)(B)(i).
First, a connection is excluded where the water is used exclusively
for purposes other than ``residential uses.'' Residential uses consist
of drinking, bathing, cooking, or similar uses. Next, a connection may
be excluded if the State exercising primary enforcement responsibility
or the Administrator determines that ``alternative water'' to achieve
the equivalent level of public health protection afforded by the
applicable national primary drinking water regulations is provided for
residential or similar uses for drinking and cooking. The third
exclusion may apply where the Administrator or the State exercising
primary enforcement responsibility determines that the water provided
for residential or similar uses for drinking, cooking, and bathing is
centrally treated or treated at the point of entry by the provider, a
pass-through entity, or the user to achieve the equivalent level of
protection provided by the applicable national primary drinking water
regulations.
``Special Irrigation District'' Exemption
A piped water system may be considered a ``special irrigation
district'' if it was in existence prior to May 18, 1994, and provides
primarily agricultural service with only incidental residential or
similar use. Special irrigation districts are not considered to be PWSs
if the system or the residential or similar users of the system comply
with the requirements of the alternative water exclusion in section
1401(4)(B)(i)(II) or the treatment exclusion in section
1401(4)(B)(i)(III).
Implementation of the New PWS Definition
Systems newly subject to SDWA regulations under the amended
definition of a PWS will not be regulated until August 6, 1998, as
provided in section 1401(4)(C) of the SDWA. States with primary
enforcement authority must revise their programs within two years from
the effective date of this regulation to include waters suppliers that
became PWSs only as a result of the new PWS definition. States must
follow the process for primacy program revisions in 40 CFR 142.12. To
assist States in revising their programs, EPA plans to issue guidance
providing a more detailed interpretation of the new definition and the
statutory exclusions.
B. Impact of These Revisions
1. Executive Order 12866
Under Executive Order 12866, [58 FR 51,735 (October 4, 1993)] the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(a) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(b) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(c) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(d) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
2. Regulatory Flexibility Act
The Agency has determined that the rule being issued today is not
subject to the Regulatory Flexibility Act (RFA), which generally
requires an Agency to conduct a regulatory flexibility analysis of any
significant impact the rule will
[[Page 23365]]
have on a substantial number of small entities. By its terms, the RFA
applies only to rules subject to notice and comment rulemaking
requirements under the Administrative Procedure Act (APA) or any other
statute. Today's rule is not subject to notice and comment requirements
under the APA or any other statute because it falls into the
interpretative statement exception under APA section 553(b) and because
the Agency has found ``good cause'' to publish without prior notice and
comment. See section B.8.
3. Paperwork Reduction Act
The information collection requirements in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1836.01) and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2137); 401 M Street, S.W.; Washington, DC 20460 or by calling (202)
260-2740. The information requirements are not effective until OMB
approves them.
This information collection is necessary because the SDWA
Amendments of 1996 added a new element to the requirements for States
to obtain and/or retain primacy for the PWSS program. In order for EPA
to determine whether States meet the new administrative penalty
authority requirement, States must submit a copy of their legislation
authorizing the penalty authority and a description of their authority
for administrative penalties that will ensure adequate compliance of
systems serving a population of 10,000 individuals or less. In
accordance with the procedures outlined in Sec. 142.11(7)(i) and
Sec. 142.12 (c)(iii), the State Attorney General must certifiy that the
laws and regulations were duly adopted and are enforceable.
Alternatively, if a State constitution prohibits assessing
administrative penalties, the State must submit a copy of the relevant
provision of the constitution as well as an Attorney General's
statement confirming that interpretation. Furthermore, as provided in
Sec. 142.11(a)(7)(ii), as amended by this rule, and Sec. 142.12(c), EPA
may additionally require supplemental statements from the State
Attorney General, (such as an interpretation of the statutory
language), when the above supplied information is deemed insufficient
for a decision.
Collecting and reporting this information will require a total
respondent cost burden estimated at $37,954.63 and 696.20 hours. This
estimate includes the time for gathering, analyzing, writing, and
reporting information. There will be no capital, start-up, or operation
and maintenance costs. This data collection does not involve periodic
reporting or recordkeeping. Rather, this will be a one time effort of
approximately 12 hours and 26 minutes by each of the 56 States who wish
to adopt the administrative penalty authority necessary in order to
obtain or retain primacy.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing way to comply
with any previously applicable instructions and requirements; train
personnel to be able to respond to a collection of information; search
data sources; complete and review the collection of information; and
transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
Send comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques to the Director, OPPE Regulatory
Information Division; U.S. Environmental Protection Agency (2137); 401
M. Street; S.W.; Washington, DC 20460; and to the Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th
Street, N.W.; Washington, DC 20503; marked ``Attention: Desk Officer
for EPA.'' Review will be in accordance with the procedures in 5 CFR
1320.10. Comments are requested by June 29, 1998. Include the ICR
number in any correspondence.
4. Unfunded Mandates Reform Act and Executive Order 12875
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The UMRA generally excludes from the
definition of ``Federal intergovernmental mandate'' duties that arise
from participation in a voluntary federal program. The requirements
under section 1413(a) of the SDWA are only mandatory if a State chooses
to have primary enforcement responsibility for PWSs. Additionally,
today's rule implements requirements specifically set forth by the
Congress in sections 1401 and 1413 of the SDWA without the exercise of
any discretion by EPA.
In any event, even if this rule were not excluded from the
definition of ``Federal intergovernmental mandate,'' EPA has determined
that this rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
[[Page 23366]]
governments, in the aggregate, or the private sector in any one year.
Thus, today's rule is not subject to the requirements of sections
202 and 205 of the UMRA.
Additionally, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments, including tribal governments. Rather, this rule
primarily affects State governments. Therefore, this action does not
require a small government agency plan under UMRA section 203.
Because this rule imposes no intergovernmental mandate, it also is
not subject to Executive Order 12875 (Enhancing the Intergovernmental
Partnership).
5. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
Today's action is not subject to Executive Order 13045 [62 FR 19885
(April 23, 1997)] which requires agencies to identify and assess the
environmental health and safety risks of their rules on children.
Pursuant to the definitions in section 2-202, Executive Order 13045
only applies to rules that are economically significant as defined
under Executive Order 12866 and concern an environmental health or
safety risk that may disproportionately affect children. This rule is
not economically significant and does not concern a risk
disproportionately affecting children.
6. Submission to Congress and the General Accounting Office
The Congressional Review Act, (5 U.S.C. 801 et seq.) as added by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), generally provides that before a rule may take effect, the
agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of the Congress and to the
Comptroller General of the United States. However, section 808 provides
that any rule for which the issuing agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefore in
the rule) that notice and public procedure thereon are impracticable,
unnecessary or contrary to the public interest, shall take effect at
such time as the agency promulgating the rule determines. 5 U.S.C.
808(2). As discussed in Section B.8., EPA has made such a good cause
finding for this rule, including the reasons therefore, and established
an effective date of April 28, 1998. EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States Office prior to publication of the rule in the Federal
Register. This rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
7. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act, the Agency is required to use voluntary consensus
standards in its regulatory and procurement activities unless to do so
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., material
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standard
bodies. Where available and potentially applicable voluntary consensus
standards are not used by EPA, the Act requires the Agency to provide
Congress, through the Office of Management and Budget, an explanation
of the reasons for not using such standards. Because this rule does not
involve or require the use of any technical standards, EPA does not
believe that this Act is applicable to this rule. Moreover, EPA is
unaware of any voluntary consensus standards relevant to this
rulemaking. Therefore, even if the Act were applicable to this kind of
rulemaking, EPA does not believe that there are any ``available or
potentially applicable'' voluntary consensus standards.
8. Administrative Procedure Act
Because this rule merely codifies and interprets a statute, the
amended SDWA, it is an ``interpretative rule.'' As a result, it is
exempt from the notice and comment requirements for rulemakings under
section 553 of the APA (See section 553(b)(3)(A)). In addition, because
this rule merely codifies statutory requirements and makes clarifying
changes to the rules necessary to implement the amended statute, notice
and comment is ``unnecessary'' and thus the Agency has ``good cause''
to publish this rule without prior notice and comment (APA section
553(b)(3)(B)). For the same reasons, EPA is making the provisions of
this rule effective upon promulgation, as authorized under the APA (See
sections 553(d)(2) and (3)). However, systems newly subject to SDWA
regulation under the amended definition will not be regulated until
August 6, 1998 as provided in the 1996 Amendments.
List of Subjects in 40 CFR Parts 141 and 142
Environmental protection, Administrative practices and procedures,
Intergovernmental relations, Reporting and recordkeeping requirements,
Water supply, Indians.
Dated: April 17, 1998.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, the Environmental
Protection Agency amends 40 CFR Parts 141 and 142 as follows:
PART 141--NATIONAL PRIMARY DRINKING WATER REGULATIONS
1. The authority citation for part 141 continues to read as
follows:
Authority: 42 U.S.C. 300f, 300g, 300g-1, 300g-2, 300g-3, 300g-4,
300g-5, 300g-6, 300j-4, and 300j-9.
2. In Sec. 141.2 by revising the definitions of non-community water
system and public water system and adding the following definitions in
alphabetical order.
Sec. 141.2 Definitions.
* * * * *
Non-community water system means a public water system that is not
a community water system. A non-community water system is either a
``transient non-community water system (TWS)'' or a ``non-transient
non-community water system (NTNCWS).''
* * * * *
Public water system or PWS means a system for the provision to the
public of water for human consumption through pipes or, after August 5,
1998, other constructed conveyances, if such system has at least
fifteen service connections or regularly serves an average of at least
twenty-five individuals daily at least 60 days out of the year. Such
term includes: any collection, treatment, storage, and distribution
facilities under control of the operator of such system and used
primarily in connection with such system; and any collection or
pretreatment storage facilities not under such control which are used
primarily in connection with such system. Such term does not include
any ``special irrigation district.'' A public water system is either a
``community water system'' or a ``noncommunity water system.''
* * * * *
Service connection, as used in the definition of public water
system, does not include a connection to a system that delivers water
by a constructed conveyance other than a pipe if:
[[Page 23367]]
(1) The water is used exclusively for purposes other than
residential uses (consisting of drinking, bathing, and cooking, or
other similar uses);
(2) The State determines that alternative water to achieve the
equivalent level of public health protection provided by the applicable
national primary drinking water regulation is provided for residential
or similar uses for drinking and cooking; or
(3) The State determines that the water provided for residential or
similar uses for drinking, cooking, and bathing is centrally treated or
treated at the point of entry by the provider, a pass-through entity,
or the user to achieve the equivalent level of protection provided by
the applicable national primary drinking water regulations.
* * * * *
Special irrigation district means an irrigation district in
existence prior to May 18, 1994 that provides primarily agricultural
service through a piped water system with only incidental residential
or similar use where the system or the residential or similar users of
the system comply with the exclusion provisions in section
1401(4)(B)(i)(II) or (III).
* * * * *
PART 142--NATIONAL PRIMARY DRINKING WATER REGULATIONS
IMPLEMENTATION
1. The authority citation for part 142 continues to read as
follows:
Authority: 42 U.S.C. 300f, 300g, 300g-1, 300g-2, 300g-3, 300g-4,
300g-5, 300g-6, 300j-4, and 300j-9.
2. In Sec. 142.2 by revising the definition of public water system
and adding the following definitions in alphabetical order.
Sec. 142.2 Definitions.
* * * * *
Public water system or PWS means a system for the provision to the
public of water for human consumption through pipes or, after August 5,
1998, other constructed conveyances, if such system has at least
fifteen service connections or regularly serves an average of at least
twenty-five individuals daily at least 60 days out of the year. Such
term includes:
Any collection, treatment, storage, and distribution facilities
under control of the operator of such system and used primarily in
connection with such system; and any collection or pretreatment storage
facilities not under such control which are used primarily in
connection with such system. Such term does not include any ``special
irrigation district.'' A public water system is either a ``community
water system'' or a ``noncommunity water system'' as defined in
Sec. 141.2.
* * * * *
Service connection, as used in the definition of public water
system, does not include a connection to a system that delivers water
by a constructed conveyance other than a pipe if:
(1) The water is used exclusively for purposes other than
residential uses (consisting of drinking, bathing, and cooking, or
other similar uses);
(2) The Administrator or the State exercising primary enforcement
responsibility for public water systems, determines that alternative
water to achieve the equivalent level of public health protection
provided by the applicable national primary drinking water regulation
is provided for residential or similar uses for drinking and cooking;
or
(3) The Administrator or the State exercising primary enforcement
responsibility for public water systems, determines that the water
provided for residential or similar uses for drinking, cooking, and
bathing is centrally treated or treated at the point of entry by the
provider, a pass-through entity, or the user to achieve the equivalent
level of protection provided by the applicable national primary
drinking water regulations.
Special irrigation district means an irrigation district in
existence prior to May 18, 1994 that provides primarily agricultural
service through a piped water system with only incidental residential
or similar use where the system or the residential or similar users of
the system comply with the exclusion provisions in section
1401(4)(B)(i)(II) or (III).
* * * * *
3. In Sec. 142.10 by revising paragraph (e), redesignating
paragraph (f) as paragraph (g) and adding paragraph (f) to read as
follows:
Sec. 142.10 Requirements for a determination of primary enforcement
responsibility.
* * * * *
(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.
* * * * *
4. In Sec. 142.11 by redesignating paragraph (a)(6) as paragraph
(a)(7) and adding new paragraph (a)(6) to read as follows:
Sec. 142.11 Initial determination of primary enforcement
responsibility.
(a) * * *
(6)(i) A copy of the State statutory and regulatory provisions
authorizing the executive branch of the State government to impose an
administrative penalty on all public water systems, and a brief
description of the State's authority for administrative penalties that
will ensure adequate compliance of systems serving a population of
10,000 or fewer individuals.
(ii) In instances where the State constitution prohibits the
executive branch of the State government from assessing any penalty,
the State shall submit a copy of the applicable part of its
constitution and a statement from its Attorney General confirming this
interpretation.
* * * * *
5. Amend Sec. 142.12, by revising paragraph (b)(1) and by adding
paragraph (e) to read as follows:
Sec. 142.12 Revision of State programs.
* * * * *
(b) * * *
(1) Complete and final State requests for approval of program
revisions to adopt new or revised EPA regulations must be submitted to
the Administrator not later than 2 years after promulgation of the new
or revised EPA regulations, unless the State requests an extension and
the Administrator has approved the request pursuant to paragraph (b)(2)
of this section. If the State expects to submit a final State request
for approval of a program revision to EPA more than 2 years after
promulgation of the new or revised EPA regulations, the State shall
request an extension of the deadline before the expiration of the 2-
year period.
* * * * *
(e) Interim primary enforcement authority. A State with an approved
primacy program for each existing national primary drinking water
regulation shall be considered to have interim primary enforcement
authority
[[Page 23368]]
with respect to each new or revised national drinking water regulation
that it adopts beginning when the new or revised State regulation
becomes effective or when the complete primacy revision application is
submitted to the Administrator, whichever is later, and shall end when
the Administrator approves or disapproves the State's revised primacy
program.
[FR Doc. 98-11260 Filed 4-27-98; 8:45 am]
BILLING CODE 6560-50-P
