[Federal Register Volume 63, Number 157 (Friday, August 14, 1998)]
[Rules and Regulations]
[Pages 43834-43851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21746]
[[Page 43833]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 141 and 142
Revision of Existing Variance and Exemption Regulations To Comply With
Requirements of the Safe Drinking Water Act; Final Rule
Federal Register / Vol. 63, No. 157 / Friday, August 14, 1998 / Rules
and Regulations
[[Page 43834]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 141 and 142
[FRL-6144-2]
RIN 2020-AA37
Revision of Existing Variance and Exemption Regulations To Comply
With Requirements of the Safe Drinking Water Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Agency is promulgating regulations to revise the existing
regulations regarding Safe Drinking Water Act variances and exemptions.
These revisions are based on the 1996 Safe Drinking Water Act
Amendments. In addition to revising the existing language regarding
variances and exemptions, the rule includes procedures and conditions
under which a primacy State/Tribe or the EPA Administrator may issue
small system variances to public water systems serving less than 10,000
persons. This rule-making is intended to provide regulatory relief to
all public water systems, particularly small systems.
DATES: This rule is effective September 14, 1998. Solely for judicial
review purposes, this final rule is promulgated as of 1 p.m. eastern
time on August 28, 1998 as provided in 40 CFR 23.7.
ADDRESSES: The rule-making record is available for inspection at the
Water Docket, mailcode MC4101, Room EB57, Environmental Protection
Agency, 401 M Street, SW., Washington, DC, 20460, from 9 a.m. to 4
p.m., Monday through Friday, excluding legal holidays. For access to
docket materials, please call (202) 260-3027 to schedule an
appointment.
FOR FURTHER INFORMATION CONTACT: Andrew J. Hudock, Office of
Enforcement and Compliance Assurance, Office of Regulatory Enforcement,
Water Enforcement Division (Mailcode: 2243-A), Environmental Protection
Agency, 401 M Street, SW., Washington, DC, 20460. Phone: (202) 564-
6032.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority
A. Overview
B. New Small System Variances
C. General Variances and Exemptions
II. Consultation with Public Water Systems, State, Tribal and Local
Governments, Environmental Groups, and Public Interest Groups
III. Discussion of Final Rule
A. Purpose and Applicability
B. Effective Date
C. Primacy Requirements
D. ``Plain English'' Format of New Subpart
E. General Provisions in Subpart K
F. Small System Variance Requirements
1. Section 142.306. Compliance Options Analysis
2. Section 142.306(b). Documentation of State Considerations in
Reviewing Small System Variances
3. Section 142.306(b)(2). Affordability Criteria
4. Section 142.306(b)(3). Availability of Approved Variance
Technologies
5. Section 142.306(b)(5). Adequate Protection of Public Health
6. Section 142.307. Terms and Conditions of Small System
Variances
7. Section 142.307(c)(4). Compliance Period for Small System
Variances
8. Sections 142.308-142.310. Public Participation Requirements
for Issuance of a Small System Variance
G. Sections 142.311 and 142.312. Bases for Administrator's
Objections to State-Proposed Small System Variances
H. Section 142.313. Bases for Administrator's Review of State
Small System Variance Program
I. General Variances: Time Limitation
J. Relationship of Exemptions and Small System Variances
K. State Revolving Fund and Capacity Development Plan Linkage to
Exemptions and Small System Variances
L. Exemptions: Renewals for Small Systems
IV. Cost of Rule
V. Other Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Enhancing Intergovernmental Partnerships
F. Risk to Children Analysis and Environmental Justice
G. National Technology Transfer and Advancement Act
H. Congressional Review Act
VI. Response to Public Comments
Regulated Entities
Potentially regulated entities are public water systems (PWSs).
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Category Example of regulated entities
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Industry..................... Privately-owned utilities, ancillary
water systems, homeowner's associations,
mobile home parks, municipalities;
county governments; water districts;
water and sewer authorities.
State/Local/Tribal Publicly-owned PWSs, municipalities,
governments. county governments, water districts,
State governments.
Federal government........... Federally-owned PWSs.
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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 the Agency is now
aware could potentially be regulated by this action. Other types of
entities not listed in this table could also be regulated. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding section, FOR FURTHER
INFORMATION CONTACT. Please note that elsewhere throughout this
preamble and rule, the term ``State'' has the same definition as
currently exists in 40 CFR 141.2, i.e., ``State means the agency of the
State or Tribal government which has jurisdiction over public water
systems* * *.''
I. Statutory Authority
Sections 115-117 of the Safe Drinking Water Act (SDWA) Amendments
of 1996 (Pub. L. 104-182), enacted August 6, 1996, amended sections
1415 and 1416 of the Act (42 U.S.C. 300g-4, 300g-5) concerning
variances and exemptions. This rulemaking codifies, interprets, and
implements these new provisions.
A. Overview
As provided under the Act, under certain conditions, variances are
available to public water systems that cannot (due to source water
quality, or, in the case of small systems, affordability) comply with
the national primary drinking water standards. Variances generally
allow a system to provide drinking water that may be above the maximum
contaminant level on the condition that the quality of the drinking
water is still protective of public health. In the case of small system
variances, the duration of the variance generally coincides with the
life of the technology. An exemption, on the other hand, is intended to
allow a system with compelling circumstances an extension of time
before the system must comply with applicable Safe Drinking Water Act
requirements. An exemption is limited to three years after the
otherwise applicable compliance date, although extensions up to a total
[[Page 43835]]
of six additional years may be available to small systems under certain
conditions.
B. New Small System Variances
Section 1415(e) establishes new provisions by which a small public
water system may obtain a variance from complying with National Primary
Drinking Water Regulations (NPDWR) under certain specified conditions.
These provisions were discussed in detail in the proposal (63 FR 19439-
40).
C. General Variances and Exemptions
As discussed in the preamble to the proposed rule, Congress
modified the language governing general variances (i.e., those
variances available to systems of any size). First, a variance may now
be granted on the condition that the system install the best
technology, treatment technique, or other means, which the
Administrator finds are available. This new modification changes the
previous requirement that mandated that the system install variance
technologies before a variance could be issued. Second, before a
variance can be issued, Congress also requires primacy States/Tribes to
conduct an evaluation that satisfies the State/Tribe that alternative
sources of water are not reasonably available to a system. Today's rule
codifies these changes.
Congress made several changes to the exemption provisions as well.
First, the new provisions require the schedule for an exemption to
require compliance with each contaminant level and treatment technique
for which the exemption was granted as soon as practicable, but not
later than three years after the otherwise applicable compliance date
established in section 1412(b)(10) of the Act.
The only exception to this exemption time period is in section
1416(b)(2)(C) of the Act, for small systems serving less than 3,300
persons, under certain specified conditions, for which extensions may
be renewed for one or more additional two-year periods, but not to
exceed a total of six years of extensions, in addition to the three-
year original exemption.
Second, the Amendments also modified section 1416 of the Act to
specify a wider set of factors that need to be considered before an
exemption is granted from the requirements of the NPDWR. Section
1416(a) of the Act now requires the State/Tribe, in determining whether
an exemption may be granted, to consider whether the public water
system is a ``disadvantaged community'' and whether management or
restructuring changes can be made that will result in compliance or, if
compliance cannot be achieved, would improve the quality of the
drinking water. Section 1416(a)(4) also requires a State/Tribe to
consider measures to develop an alternative source of water supply.
Finally, section 1416(b)(2)(D) of the Act states that a small system
that has received a variance under section 1415(e) cannot receive an
exemption under section 1416.
II. Consultation With Public Water Systems, State, Tribal and Local
Governments, Environmental Groups, and Public Interest Groups
As required under section 1415 of the SDWA, as amended, the Agency
has consulted with State representatives, as well as a broad range of
other interested parties, in the development of this rule. These
consultations are described in the preamble to the proposed rule (63 FR
19440-41). The rule being promulgated today has been developed in
consultation with, and takes into consideration suggestions from,
public water systems, environmental groups, public interest groups, the
States, Tribes, and other interested parties.
III. Discussion of Final Rule
A. Purpose and Applicability
Through this regulation, the Agency seeks to codify the 1996 SDWA
amendments addressing general variances and exemptions provisions, as
well as providing a new subpart which addresses the procedures for
issuance of small system variances. This rule will be applicable to all
eligible public water systems and primacy agencies (States, Tribes, and
the Agency).
B. Effective Date
The effective date of this rule will be September 14, 1998. The 30-
day effective date in the final regulations allows for a State to issue
variances and exemptions as soon as the State adopts regulations no
less stringent than today's regulations and submits any revisions to
the State's rules to EPA for approval under 40 CFR 142.12(a)(1). A
State may adopt these regulations at any time before or after the 30-
day effective date.
Upon the effective date, the issuance of all variances and
exemptions must meet requirements which are no less stringent than
today's rule. If a State has existing regulations which are less
stringent than today's rule and the State wishes to issue variances or
exemptions, the State must adopt regulations which are no less
stringent than today's rule.
In response to commenters who were concerned that the 30-day time
period is too short for implementation by the State, EPA wishes to
clarify that the effective date in the regulation does not require that
a State adopt the regulation and modify its program within 30 days of
promulgation. A State may choose not to issue variances or exemptions
or may choose to delay implementation until new applicable drinking
water regulations are promulgated. The effective date provision in the
regulation does not limit the State in its decision whether to
implement these regulations.
C. Primacy Requirements
Primacy States/Tribes, if they choose to issue variances and
exemptions, are required under section 1413(a)(4) of the Safe Drinking
Water Act to issue such variances and exemptions under conditions and
in a manner which is not less stringent than the variance and exemption
provisions of the Act. In addition, section 1415(e)(7)(A) of the Safe
Drinking Water Act requires the Administrator to promulgate regulations
that specify procedures to be used by the Administrator or the State to
grant or deny variances. In reading these two provisions together, EPA
believes that Congress intended that States adopt procedures no less
stringent than those identified in this rule for issuance of small
system variances. Therefore, the Agency has amended Sec. 142.10(d) of
the regulations accordingly. Thus, if a primacy State wishes to issue
small system variances, it must first enact State regulations which are
no less stringent than the requirements in section 1415(e) of the Act
and as embodied in this rule, and seek EPA approval of such regulations
by submitting a program revision package.
D. ``Plain English'' Format of New Subpart
As discussed in the preamble to the proposed rule, the Agency has
drafted Subpart K of these regulations in a question-and-answer format
in ``plain English'', in accordance with current Agency policy for
regulation development. The intent of ``plain English'' is to produce
rules which are clear, concise, straight-forward, understandable, and
enforceable, without extensive ``legalese''. Public comments supported
this approach.
On June 1, 1998, President Clinton issued a memorandum directing
that federal government documents generally be drafted in ``plain
language''. Although the Presidential Memorandum does not apply to
rules, such as this one, which are proposed before 1999, EPA believes
that this rule incorporates and is fully consistent with
[[Page 43836]]
the plain language concepts outlined in the Memorandum.
E. General Provisions in Subpart K
Sections 142.301-142.305 of the small system variance regulations
essentially codify the statutory provisions governing who can apply
for, and who can grant, these variances. EPA has promulgated these
provisions as proposed, with slight modifications to address public
comments.
For small system variances, section 1415(e)(6) of the Safe Drinking
Water Act states that such variances are not available for (1) any
maximum contaminant level (MCL) or treatment technique for a
contaminant for which a NPDWR was promulgated prior to January 1, 1986,
or (2) a NPDWR for a microbial contaminant or an indicator or treatment
technique for microbial contaminant. As discussed in the preamble to
the proposed rule, the Agency will not be listing small system variance
technologies for microbial contaminants. In addition, the Agency will
not be listing any variance technology for an MCL or treatment
technique for a contaminant for which a NPDWR was promulgated prior to
January 1, 1986 and not subsequently revised or allowing any variances
for such contaminants (see Sec. 142.304). With respect to this latter
category, the Agency interprets the section 1415(e)(6)(A) prohibition
in the Act to apply to the level at which any contaminant was regulated
before 1986; therefore, variances are not available to systems above
the pre-1986 level even if that level was subsequently revised.
However, if the Agency revises a pre-1986 level and makes it more
stringent (i.e., makes the MCL lower), then a variance would be
available for that contaminant, but only up to the pre-1986 MCL.
Generally, public comments were supportive of this interpretation.
One public commenter suggested that the Agency allow small system
variances above the pre-1986 MCL. As noted in the preamble to the
proposed rule (63 FR 19442), EPA believes that the scope of the
prohibition on issuing a variance for an MCL or treatment technique for
a contaminant with respect to which an NPDWR was promulgated prior to
1986 is somewhat ambiguous. However, EPA believes that the best
interpretation of this provision is that the prohibition attaches to
the pre-1986 level for the contaminant and that no variances are
allowable for revisions to these levels that are less stringent. The
interpretation suggested by the commenter would allow variances for
revised, less stringent MCLs even where compliance with an earlier,
more stringent MCL was required years ago. This interpretation is
inconsistent with what EPA surmises as the intent behind this
provision, i.e., to disallow variances for contaminants where
compliance should have been achieved long ago. Therefore, EPA is
finalizing the regulation as proposed, but with a note stating EPA's
interpretation of this provision.
The Agency also received a comment suggesting that the Agency
prohibit issuance of the small system variance for acute contaminants.
EPA believes that such a prohibition is unnecessary. Congress has
already prohibited the issuance of small system variances for microbial
contaminants, including many of the acute contaminants. For any other
contaminants, EPA may not list a variance technology unless the Agency
makes a finding that the use of that technology for that contaminant is
protective of public health. In addition, prior to issuance of any
small system variance, the primacy agency must also make a finding that
the specific terms and conditions of the variance will ensure adequate
protection of human health. EPA believes that these determinations will
appropriately limit variances for acute contaminants.
F. Small System Variance Requirements
Sections 142.306-142.310 of the rule establish the conditions under
which the primacy agency can grant small system variances. The Agency
attempted in the proposed rule to provide flexibility in the process of
applying and reviewing requests for small system variances. For
example, the Agency did not specify any particular form of a variance
application or who (the system or the State) needs to provide the
relevant information; rather, the Agency only specified that the
information must be sufficient for the primacy agency to make certain
findings and that those findings must be documented in writing.
Some commenters requested that the Agency clarify who has the
burden of ensuring that the information necessary to issue a small
system variance is available. The Agency recognizes that States may
have helpful technical information that may not be readily available to
a small system, such as sanitary surveys. States are encouraged to work
with the small systems to determine compliance options and to develop
information which may improve the quality of the water served by the
system. States may provide valuable assistance to small systems that do
not have the capacity to obtain necessary information on their own.
States may use elements in their Capacity Development Strategies to
assist public water systems in gathering all necessary information for
the variance to be issued. However, the ultimate responsibility for
providing the information necessary to support a variance rests with
the public water system requesting a small system variance as
prescribed in section 142.306(a) of the regulation. EPA has modified
the regulations to clarify this.
1. Section 142.306. Compliance Options Analysis
Sections 1415(e)(1)-(3) of the Act identify the conditions under
which small systems may receive a small system variance. In the rule,
Sec. 142.306(b) codifies these conditions and includes concepts related
to the State Capacity Development Strategy. The compliance options
analysis is an integral element of sections 1415 and 1416 of the Act,
as well as under the rule at Sec. 142.306(b). Similar in concept to
capacity development, a compliance options analysis can allow the State
to consider the underlying reasons for noncompliance, and what options
are available to the system to return to compliance for the long term.
This portion of the regulations is final as proposed.
2. Section 142.306(b). Documentation of State Considerations in
Reviewing Small System Variances
The regulations require that States document their findings
regarding a small system's eligibility for a small system variance.
Where the State does not have primary enforcement responsibility under
section 1413 of the Safe Drinking Water Act, the Agency will document
its findings for the record, if it grants a small system variance.
Some public comments on the proposed regulations indicated that
documentation of State findings and subsequent submittal to the
Administrator (as required under Sec. 142.311) imposed an unnecessary
and unreasonable burden on the regulatory agency, and stated that this
burden should lie more heavily on the public water system. EPA believes
that it is imperative for the regulatory agency to clearly specify and
document any information used in determining whether to grant a small
system variance. A thorough record must be available for interested
members of the public to understand, comment on, or possibly object to
a proposed variance or otherwise make informed decisions relating to
the public water system. In addition, this information is necessary
[[Page 43837]]
for EPA to adequately review proposed small system variances issued as
well as for the EPA periodic review of the State variance program as
required by the Act. Because the State or the Administrator would be
the actual decision makers, they are in a better position than the
public water system to document and maintain their findings.
Documentation required in the rule must indicate not only that a
certain factor listed in Sec. 142.306 of the regulations was
considered, but must also include the rationale for decisions by the
State or EPA regarding each of the required findings, as well as the
underlying facts supporting that decision. Note, however, that EPA does
not believe that this documentation necessarily needs to be extensive.
Rather, the documentation needs to be sufficient to explain how the
variance will meet the statutory and regulatory requirements in enough
detail that interested members of the public and EPA can understand the
basis for the decision and determine whether to object to the variance.
3. Section 142.306(b)(2). Affordability Criteria
Section 142.306(b)(2) of the rule codifies the statutory
requirement that States undertake a compliance options analysis in
accordance with the State's own affordability criteria (including
noncommunity systems). One commenter expressed concern that, depending
on the level of detail required, the cost of undertaking and
documenting such an analysis could be excessive relative to the cost of
installing an appropriate variance technology. As an example, the
commenter indicated that in their experience, the cost of evaluating
restructuring and consolidation options for a given project area ranged
from $50,000 to $100,000. EPA understands that a rigorous compliance
options analysis may be resource-intensive and expects that States and
public water systems will tailor the level of analysis to the needs and
resource constraints of the specific situation. EPA received no other
comments on this section and is promulgating the rule as proposed.
4. Section 142.306(b)(3). Availability of Approved Variance
Technologies
Section 1412(b)(15)(D) of the Act requires that, not later than
August 6, 1998, the Agency issue guidance or regulations regarding the
available variance technologies for each national primary drinking
water regulation for which a variance may be granted. The variance
regulations include, in various sections (including Sec. 142.306), the
requirement that, during review of an application for a small system
variance, a primacy State or the Administrator make a finding whether,
among other things, the Administrator has published a variance
technology in accordance with section 1412(b)(15) for the applicable
maximum contaminant level or treatment technique for which that
variance is sought.
Pursuant to section 1412(b)(15)(A) of the Act, variance
technologies may not suffice to achieve compliance with the relevant
maximum contaminant level or treatment technique, but the variance
technologies must achieve the maximum reduction or inactivation
efficiency that is affordable considering the size of the system and
the quality of the source water. In addition, section 1412(b)(15)(B)
requires that any identified variance technology be determined by the
Administrator to be protective of public health.
Some public comments requested clarification of whether an
alternative technology, not listed by the Administrator pursuant to
section 1412(b)(15) of the Act, may be installed through a small system
variance. Section 142.307(b)(1) of the regulation requires that the
terms and conditions of the small system variance include installation
of the technology specified under section 1412(b)(15)(D) of the Act.
The Agency recognizes the importance and beneficial value of new
alternative technologies. However, Congress specifically mandated that
the Administrator publish a list of technologies for small systems and
that only the listed technologies may be installed through issuance of
a small system variance technology. A State or any other party may
petition the Administrator to consider the listing of any new
alternative technology. However, section 1415(e)(2) of the Act makes
clear that the Agency must specifically list a small system technology
before a State may allow a system to install such technology through a
small system variance.
5. Section 142.306(b)(5). Adequate Protection of Public Health
Section 142.306(b)(5) of the rule codifies the statutory
requirement that the primacy agency grant a small system variance only
where the terms ensure adequate protection of public health,
considering the source water quality and removal efficiencies and
expected useful life of the small systems variance technology. Under
section 1412(b)(15)(B) of the Act, the Administrator, in identifying
variance technologies for small systems, must determine that the
technology is protective of public health considering the quality of
the source water to be treated and the expected useful life of the
technology. As explained in the preamble to the proposed rule, the
Agency believes that Congress intended the Administrator to make a
determination that, on a national level, any variance technology
identified is generally protective of public health when applied within
general source water conditions and operating and maintenance
procedures. However, recognizing that the level of public health
protection afforded by a specific technology could be dependent on
site-specific factors that may vary system by system, Congress provided
for a corresponding requirement that the State also make a
determination that the terms of the variance as applied to a particular
system adequately protect public health.
As required under section 1412(b)(15)(C) of the Act, the variance
technology guidance under section 1412(b)(15)(D) will identify
assumptions used by the Administrator in determining that each
technology is protective of public health. In doing so, the guidance
will identify the typical removal efficiency achieved by each variance
technology listed by the Administrator, considering the overall
capabilities of the treatment process and the source waters on which
the technology would typically be applied. The guidance will also
discuss source water characteristics that can adversely affect the
removal of the contaminant by the process. The State may use this
information in the guidance to set specific terms and conditions on the
operation of the technology that will ensure adequate protection of
public health.
In the proposed rule, EPA solicited comment on whether it would be
useful and appropriate to provide additional technology-specific
guidance on site-specific factors that should be considered and
appropriate terms and conditions that may be needed to ensure adequate
protection of public health. In general, commenters were strongly
supportive of this idea. Therefore, EPA plans to develop such guidance
and make it available as expeditiously as possible after promulgation
of this rule. This guidance will cover those contaminants, if any, and
available small system variance technologies which are identified in
the initial listing prepared under section 1412(b)(15)(C). As
additional contaminants and small system variance technologies are
identified in the future, the new guidance listing these technologies
will include information on consideration of
[[Page 43838]]
site-specific factors and appropriate terms and conditions that may be
needed to ensure adequate protection of public health.
Several commenters, while endorsing the need for such guidance,
also indicated that it should be informational in nature, and not
undermine the statutory authority of primacy States to determine that
the terms of the variance ensure adequate protection of public health.
As stated in the preamble to the proposed rule, EPA understands that
Congress clearly left the responsibility to consider site-specific
factors and define appropriate terms and conditions to ensure adequate
protection of public health to the primacy agencies, and EPA does not
wish to diminish that responsibility. At the same time, the Agency
believes (and commenters seem to agree) that it may be efficient for
EPA to identify, in the context of its determination that a technology
is protective, those factors of which the Agency is aware that may be
appropriate for the State to consider on a site-specific basis and to
suggest appropriate responses to situations which pose additional
risks. It is in this spirit that EPA has decided to develop the
guidance discussed in this section.
EPA also requested comment in the proposed rule regarding the
appropriateness of including, in the final rule, a requirement that
States specifically consider impacts on sensitive subpopulations in
their determination of adequate public health protection. Commenters
were not supportive of such a requirement and EPA has decided not to
include it in the final rule. As an alternative, EPA indicated that it
may include, in the guidance discussed above, information on specific
factors that may result in special risks to sensitive subpopulations
and suggestions on how to address such risks. States could then use
this information as appropriate to support their determination of
adequate protection of public health. Commenters were supportive of
this alternative approach. Consequently, EPA will include, in the
guidance on site-specific factors and appropriate terms and conditions,
information on special risks to sensitive subpopulations, where such
risks have been identified, and suggestions on how to address them.
6. Section 142.307. Terms and Conditions of Small System Variances
Section 142.307 outlines what terms and conditions must be included
in a small system variance. The Agency received no comments on this
section and is thus promulgating it as proposed.
7. Section 142.307(c)(4). Compliance Period for Small System Variances
Section 142.307(c)(4) of the rule codifies the statutory language
regarding the duration of variances. The Agency is promulgating this
section as proposed.
As discussed in the preamble to the proposed rule, the Agency
interprets section 1415(e)(4) to allow the primacy agency to grant the
two-year extension to the compliance period at the time of issuance of
the variance, upon a determination by the primacy State or the
Administrator that those two additional years are necessary to ensure
compliance. Such a determination should be supported with sufficient
documentation. Therefore, it is possible, under certain conditions,
that small systems may receive a five-year compliance schedule to
achieve compliance with the terms and conditions of the small system
variance.
8. Sections 142.308-142.310. Public Participation Requirements for
Issuance of a Small System Variance
a. Overview
The Agency is required under section 1415(e)(7)(A)(i) of the Act to
promulgate regulations specifying requirements for notifying the
consumers of the public water system that a small system variance is
proposed to be granted (including information regarding the contaminant
and variance) and requirements for a public hearing on the small system
variance before the variance is granted. Today's rule addresses this
statutory mandate through Secs. 142.308-142.310 of the regulations.
These requirements are also intended to ensure that persons served by
the system who may wish to file a petition with the Administrator to
object to the variance, as provided for in section 1415(e)(10)(B) of
the Act, have adequate information and time to do so.
The overall structure of the process intended by today's
regulations for granting a small system variance has been modified in
response to public comment. This process, as modified, is outlined
below, with changes to the process discussed in further detail in the
paragraphs which follow the outline:
(1) A small public water system submits an application to the
primacy agency for a small system variance;
(2) The primacy agency reviews the small system's application and
performs a compliance options analysis to determine if a small system
variance should be issued to the public water system.
(3) If a small system variance can be issued in accordance with the
Act and the regulations, and upon finding and documenting the required
information under Section 142.307 of the rule, the primacy agency
establishes the terms and conditions of the proposed small system
variance;
(4) The primacy agency or public water system provides notice to
persons served by the system of the primacy agency's intent to propose
the small system variance and of a public hearing on the proposed
variance, including information on the contaminant and its potential
health effects, the compliance options considered, and the terms and
conditions of the proposed variance; this information must be provided
at least 30 days prior to the date of the public meeting;
(5) The primacy agency prepares a draft of the small system
variance, including terms and conditions, and, if the public meeting
occurs prior to proposal of the small system variance, makes the draft
variance available to the public no later than the public meeting;
(6) The primacy agency proposes the variance by publishing a notice
in the State equivalent of the Federal Register, or in a newspaper
widely distributed through the State, or, in the case of the
Administrator, in the Federal Register;
(7) Either before, or within 15 days after publication of this
notice that the variance has been proposed, the primacy agency conducts
a public hearing on the draft proposed small system variance;
(8) If a State proposes to issue a small system variance to a
public water system serving 3,300 or fewer persons, the State must
submit the proposed small system variance and all supporting
documentation to EPA for review; if a State proposes to issue a small
system variance to a public water system serving a population of more
than 3,300 and fewer than 10,000 persons, the State must submit the
proposed small system variance and all supporting documentation,
including any public comments received prior to this submission, to EPA
for review and approval of the proposed variance;
(9) Within thirty days of the proposal date (the date on which the
primacy agency publishes the notice of the proposed variance) of any
small system variance, persons served by the system may petition the
Administrator to object to the proposed small system variance; and
(10) The Administrator must respond to all such petitions within 60
days of receiving them and may object to a proposed small system
variance within 90 days of the proposal date.
After reviewing public comments on the proposed regulations, EPA
has
[[Page 43839]]
modified these regulations to provide that either the State or public
water system must provide the notice for a public meeting on the small
system variance at the same time that the State notifies the public
that it intends to propose the small system variance. EPA received many
public comments indicating that, in many circumstances, the public
water system would be in a better position than the State to identify
the persons served by the system and the public water system should
have the burden of providing public notice. The revised regulation
allows the State to direct the public water system to conduct the
public notification requirements in the regulation.
In addition, the Agency received comments that not all States may
be able to publish such public notice in a State equivalent to the
Federal Register. In response, the regulations now provide that the
State may publish the notice of the proposed variance in a newspaper
with wide circulation in the State.
In summary, the regulation requires that at least one public notice
must be provided to the system's consumers (as defined in section
III.F.8.d. of the preamble) (in addition to publishing notice of the
proposed variance in the State Register or Federal Register or in a
newspaper widely distributed in the State) to fulfill the requirement
of notifying the public of the public hearing and proposal of the small
system variance. In any case, the Administrator encourages States and
small systems to engage the public in the development and issuance of
the small system variance early in the process.
b. Notice by Public Water Systems at the Time that a Small System
Variance Application Is Submitted
Based on public comments on the proposed regulations, the Agency is
not mandating that the public water system provide notice to the
persons served by the system that the system is applying for a small
system variance. (Such additional requirements may be imposed through
State regulations.) Other regulations, such as the public notification
rule and the consumer confidence rule, will ensure that the persons
served by the system are aware that the system is operating in
violation of the applicable drinking water regulation. Therefore,
requiring this initial notice may be redundant in nature and may not be
an efficient manner of notifying the public of the condition of the
drinking water being supplied by the public water system. Even though
this regulation does not require the proposed early notice, the Agency
encourages early involvement of the public in the small system variance
process.
c. Public Meeting Requirement
Section 142.309 of the regulations addresses the requirements for a
public meeting on a draft proposed small system variance and notice of
the public meeting. Consistent with section 1415(e)(7)(A)(i) of the
Act, a State or the Administrator is required to provide for at least
one (1) public meeting on the small system variance before it is
granted. However, before holding a public meeting, the State or the
Administrator must make public a draft of the proposed small system
variance along with various supporting information as specified in
Sec. 142.308(c) of the regulations, to ensure that the public is
adequately informed of the terms and conditions likely to be in the
proposed small system variance. The State or the Administrator must
notify the public of the public meeting (and provide the required
supporting information) at least 30 days before the date of the
meeting. EPA is promulgating this section as proposed.
d. Manner of Public Notification
Section 142.308 of the proposed regulations codifies the Safe
Drinking Water Act provision that any person served by the system may
petition the Administrator to object to the granting of a variance.
Public comments requested that the Agency clarify the terms
``customers'', ``consumers'', and ``persons served'' as it is used in
this regulation. EPA interprets ``customers'' to mean billing units or
other service connections to which water is delivered by the public
water system. (Other service connections could include, for example,
municipal facilities which receive service but which might not be
billed.) On the other hand, EPA interprets ``consumers'' and ``persons
served'' more broadly to mean persons who receive drinking water from
the public water system on a regular basis. The term ``person served''
or ``consumer'' includes customers, as defined above, and other persons
who are served by the public water system on a regular basis, such as
factory workers and tenants of apartment houses and condominiums, who
may not receive water bills. The notice requirements in these
regulations are intended to provide adequate notice for persons who may
wish to participate in the variance process or petition the
Administrator to object to the variance. The Agency sought to ensure
that these definitions are consistent with other supporting regulations
currently in development, including the Consumer Confidence Report
regulations.
Based on public comments, the Agency is clarifying whether the
primacy agency or the public water system has the burden for the public
notice. The Agency recognizes that there may be certain small systems
that would require assistance from the primacy agency to satisfy the
public notification requirements within the small system variance
process. The Agency encourages the primacy agency to work with such
systems to ensure that the public is involved in the variance process.
However, the Agency does not intend to place the actual burden of the
public notice on the primacy agency in these regulations. In order to
clarify the Agency's intention, the final regulations make clear that
either the primacy agency or the public water system must provide the
public notice. The primacy agency maintains flexibility to direct the
public water system to provide such notice. For purposes of Agency
review and/or approval of a small system variance, the Agency is
concerned that the public notification requirements within the
regulations are satisfied, not with which entity actually conducts the
notice.
Operators of small systems requested that the Agency address the
issue of whether persons who are not billing customers of the system
must be provided a notice by direct mail considering the burden
associated with identifying and obtaining mailing addresses for non-
billed consumers of a system's water. In light of all comments, the
Agency is retaining the requirement that individual notice only need be
provided to billed customers of the system. In addition, notice must be
provided in a brief and concise manner to regular consumers who are not
billing customers, by some other reasonable method, such as publication
in a local newspaper, posting in public places, or delivery to
community organizations. Although this might not reach persons outside
the service area, it would reach factory workers and tenants of
apartment houses and condominiums, even if those persons do not receive
water bills. At the time of variance proposal, however, the State must
publish a notice in a State-wide publication, thereby reaching
interested persons who might not receive water bills or live in the
service area. Today's rule would therefore require a State or public
water system to provide some form of notice to all persons served by
the system on a regular basis.
[[Page 43840]]
e. Content of Notices
Section 1415(e)(7)(A)(i) of the Safe Drinking Water Act requires
that public notification include information regarding the contaminant
and variance. Section 142.308(c) of the regulations implements this
statutory requirement. In this provision, the Agency is requiring,
along with other information, specific health effects language to be
used in the notices. The Agency is requiring use of the health effects
language developed for the Consumer Confidence Report Rule. The Agency
believes that there are many benefits to the use of standard health
effects language in the various public notice provisions of the amended
Safe Drinking Water Act, particularly in reducing confusion for the
systems and the public.
In addition, in response to comments, EPA has revised the
multilingual notification requirement in Sec. 142.308(c)(7) of the
proposed regulations. With this revision, the primacy agency will
determine what constitutes a large proportion of non-English-speaking
residents, and thus when the multilingual notification requirements are
applicable. The multilingual notification requirement is consistent
with the Agency's Consumer Confidence Report Rule.
The Agency received several comments expressing concern that small
public water systems lack the resources to provide public notification
materials in foreign languages, and suggesting that EPA either
eliminate this requirement or develop such materials in the ten most
frequently used languages. In response, the Agency notes that systems
are not required to provide a translation of the materials listed in
section 142.308(c), but only ``information in the appropriate language
regarding the content and importance of the notice.'' (Section
142.308(c)(7)) EPA envisions that in many cases this would entail a
relatively short statement indicating that the enclosed materials
contain information on a proposed variance from national drinking water
regulations which could affect the level of public health protection
afforded to consumers of the system's water. Of course, EPA would
encourage systems that do have the resources to provide more complete
translations of the public notification materials in cases where a
significant non-English-speaking population is present.
f. Consumer Petition Process
Section 1415(e)(10)(B) of the Safe Drinking Water Act allows for
persons served by the system to petition the Administrator to object to
the granting of a small system variance; such petitions must be
submitted not later than thirty days after a State proposes to issue a
small system variance. This statutory provision is implemented in
section 142.310 of today's rule. EPA has clarified the regulation to
specify that the date of ``proposal'' is the date upon which the State
publishes its notice of proposal in a State-wide publication. Consumer
petitions should be mailed to the EPA Regional Administrator.
G. Sections 142.311 and 142.312. Bases for Administrator's Objections
to State-Proposed Small System Variances
Pursuant to section 1415(e)(9) of the Act, Sec. 142.312(a) of the
rule requires a primacy State, which is proposing to grant a small
system variance to a public water system serving more than 3,300 and
fewer than 10,000 persons, to submit that variance to the Administrator
for review and approval prior to issuance. Section 142.312(c) requires
that, if the Administrator disapproves the variance, the Administrator
notify the State in writing of the reasons for such disapproval. Such
disapproval must be based upon a determination that the small system
did not meet the requirements for a variance under the Act and
regulations, including the requirement that the system cannot afford to
comply with the maximum contaminant level (MCL) or treatment technique
for which the variance is being sought, in accordance with the State
affordability criteria.
In addition, Sec. 142.311(a) of the rule requires a primacy State,
which is proposing to grant a small system variance to a public water
system serving 3,300 or fewer persons, to submit that variance to the
Administrator for review prior to issuance. Some public comments to the
proposed regulations suggested that the Administrator does not have the
statutory authority to review proposed small system variances for
systems serving fewer than 3,300 persons and that the proposed
regulations are therefore in conflict with section 1415(e)(1) and
1415(e)(8) of the Act. The Agency does not believe that this
interpretation of the statute is appropriate since it is inconsistent
with the Administrator's broad review authority provided in section
1415(e)(10)(A) of the Act.
The Act specifies two different and distinct procedures for
reviewing and objecting to any proposed small system variance proposed
by a State. Section 1415(e)(10)(A) of the Act addresses EPA review of
``any'' variance proposed by the State and its ability to object to
``any'' proposed variance. Section 1415(e)(10)(B) of the Act addresses
consumer petitions to the Administrator requesting that the
Administrator exercise objection authority under section 1415(e)(10)(A)
of the Act. Section 1415(e)(10)(B) does not limit EPA's authority to
review and object to a proposed small system variance and is
independent from the Administrator's authority under section
1415(e)(10)(A).
The Agency's interpretation of section 1415(e)(10) of the Act is
not in conflict with section 1415(e)(1) and 1415(e)(8) of the Act.
Section 1415(e)(1) allows the primacy agency to issue small system
variances in accordance with the Act and regulations. EPA's review and/
or objection to a small system variance does not diminish a State's
responsibility to decide whether to issue a small system variance.
Section 1415(e)(8) of the Act does not conflict with the Agency's
ability to review and/or object to a small system variance. Section
1415(e)(8) solely addresses EPA's review of a State's variance program
as a whole and is independent from EPA's authority under section
1415(e)(10)(A) to object to a specific proposed variance.
In addition, Congress mandated under section 1415(e)(9) that the
State submit for review and approval by the Administrator any small
system variance proposed for a system serving more than 3,300 and fewer
than 10,000 persons. Before a State grants a small system variance for
a public water system serving this population, the Administrator must
formally approve the variance. Without such approval, a State may not
grant the variance. The Administrator's approval of variances under
section 1415(e)(9) of the Act is independent from the Administrator's
authority to review ``any'' variance under section 1415(e)(10) of the
Act.
Section 142.311(a) of the regulations, which requires that the
State submit the proposed small system variance and all supporting
information to the Administrator, is necessary to implement section
1415(e)(10)(A) of the Act, which allows the Administrator to review and
object to any proposed small system variance. Section 142.311(b) of the
regulation is simply the codification of section 1415(e)(10)(A) of the
Act included in the regulation for purposes of clarity.
H. Section 142.313. Bases for Administrator's Review of State Small
System Variance Program
Pursuant to section 1415(e)(8)(A) of the Safe Drinking Water Act,
Sec. 142.313 of the rule requires the Administrator to periodically
review the primacy State's
[[Page 43841]]
variance program to determine whether variances granted by the State
comply with the requirements of the Act. EPA received no comments on
this section and is promulgating it as proposed.
I. General Variances: Time Limitation
Section 1415(a)(1)(A)(ii) of the Safe Drinking Water Act states
that a schedule prescribed under a general variance must require
compliance, by the public water system, with each maximum contaminant
level or treatment technique requirement with respect to which the
variance was granted, as expeditiously as practicable (as the State may
reasonably determine) but sets no specific final date for compliance
other than that in the compliance schedule. EPA requested comment on
whether the Agency should specify a time-frame in the final rule,
consistent with the time frame for small system variances in the Act.
Commenters were generally opposed to this approach.
The Agency recognizes that in issuing a general variance the State
has the flexibility to prescribe time frames within a schedule to reach
compliance with the conditions of the variance and the Act, including
installation of the best available technology. However, consistent with
section 1415(e) of the Act, the Agency presumes that a reasonable time
frame for public water systems to install the best available technology
is within five years of granting of the variance. The Agency recognizes
that there may be situations in which five years may not be a feasible
time frame to install such technology. However, when such situations
are presented, efforts must be made to ensure that the public be
notified and involved in the variance process. Today's regulations
require that if a State prescribes a schedule in a general variance
that requires compliance beyond five years of the issuance date the
State must (1) document its rationale for the extended compliance
schedule, (2) discuss the rationale for the extended compliance
schedule in the required public notice and opportunity for public
hearing, and (3) provide the shortest practicable time schedule
feasible under the circumstances. Such requirements are consistent with
the theme of the 1996 Amendments to the Safe Drinking Water to maximize
public participation in major decisions affecting drinking water. Under
this approach, the State retains flexibility in determining the time
frame for compliance under a general variance as expeditiously as
practicable.
J. Relationship of Exemptions and Small System Variances
Under section 1416(b)(2)(D) of the Safe Drinking Water Act, a
public water system may not receive an exemption under section 1416 if
the system was granted a small system variance under section 1415(e) of
the Act. The Act is silent on whether a small system variance under
section 1415(e) may be issued after the issuance of an exemption under
section 1416. In the proposal, EPA asked for comment on this and
commenters were generally in favor of allowing a variance after an
exemption. However, after consideration of public comment, policy
considerations and the statutory framework in sections 1415(e) and
1416, the Agency believes that public water systems should generally
not receive a variance after receiving an exemption for the same
contaminant.
The Agency interprets section 1416(b)(1)(A) to require that the
endpoint of a compliance schedule established under an exemption be
full compliance with the maximum contaminant level or treatment
technique for which the exemption was granted. During the stakeholders
process and the public comment period, the Agency received comments
indicating that the regulations should implement the exemption
provisions of the Act to allow a public water system which has received
an exemption to subsequently receive a variance for that same
contaminant if it turns out that there is no affordable compliance
technology for the system. While the final rule promulgated today does
not explicitly prohibit the issuance of a variance after an exemption,
EPA believes that it is generally inappropriate. Rather, EPA believes
that the determination of whether there is an affordable compliance
technology for the system should be made in the initial compliance
options analysis. However, if, during the course of the compliance
schedule established for a small public water system's exemption, the
regulations for the contaminant for which the exemption was granted
were revised and the MCL was made more stringent, then the system, with
a new regulatory compliance date and new MCL, would have the option of
seeking full compliance with the new MCL by the compliance date,
seeking a small system variance or seeking an exemption.
Congress established two distinct mechanisms to allow systems
regulatory alternatives. Exemptions were established to allow public
water systems more time to comply with a newly promulgated national
primary drinking water regulation under certain conditions. Under an
exemption, under certain conditions, a small system may have up to 9
years, including extensions, to achieve full compliance. Small system
variances were established to allow small public water systems up to a
possible 5 years to install alternative technologies under certain
conditions. Upon completion of the compliance options analysis, the
public water system should know whether an exemption or small system
variance is the proper route to pursue. If a small system cannot afford
to install a small system technology within the maximum allowable 5-
year period, the primacy agency must consider other alternatives to
address the noncompliance of the system. To grant a small system
variance after an exemption could prolong the installation of the
proper treatment technology well beyond the statutory time frames
provided for either an exemption or a variance. Therefore, the Agency
believes that it is generally inappropriate to grant a small system
variance after an exemption.
The Agency also notes that, for a primacy agency to grant a small
system variance, it must determine that compliance with the MCL is not
affordable, according to the primacy agency's affordability criteria,
through treatment, alternate sources of water supply, restructuring or
consolidation, or obtaining financial assistance from the drinking
water State Revolving Fund (SRF) or any other Federal or State program.
In contrast, an exemption must include a schedule to achieve compliance
within three years (with up to three two-year extensions for small
systems in some circumstances). EPA believes that it would generally be
difficult for a primacy agency to determine that compliance with the
MCL is not affordable for a system that had previously been granted an
exemption, unless there has been a significant unforeseen change in
circumstances since the initial compliance options analysis upon which
the exemption was based. By ``unforeseen changes in circumstances''
that may cause a primacy agency to determine that a system cannot
afford to comply after an initial compliance determination, EPA means
the following circumstances:
(1) Significant changes in source water due to natural disasters
in the community;
(2) Small public water systems or primacy agencies could not
have reasonably obtained all information related to source water
quality and the absence of such information led to an improper
determination that an
[[Page 43842]]
exemption, as opposed to a small system variance, should be granted;
(3) Significant unforeseen change in economic circumstances, such
as a severe economic downturn in the community, which would make the
cost of the compliance technology unaffordable according to the primacy
agency's affordability criteria. Failure to obtain funding from any
particular source (e.g., State or Federal assistance program) would not
automatically indicate that the compliance technology is unaffordable.
The primacy agency should consider all financial circumstances,
including alternate funding sources, in determining affordability; or,
(4) The public water system installs and is properly operating the
best available technology, as designated by the Administrator, and is
in compliance with all other requirements of the Act and regulations,
but continues to be in non-compliance with the MCL or treatment
technique for which the exemption was granted.
If such a change should occur, and a system will not be able to
comply with the MCL within the established time frame, the system
should notify the primacy agency immediately, rather than waiting for
the next compliance deadline to pass, and the primacy agency should
take appropriate action. The Agency believes that the most appropriate
mechanism to address such a system is through an administrative order
or consent order allowing the small system to install a small system
variance technology, as designated by the Administrator, as an interim
measure toward achieving full compliance in the future. Regardless of
the mechanism selected, however, the primacy agency must ensure that
the terms of any variance or order provide adequate protection of
public health.
K. State Revolving Fund and Capacity Development Plan Linkage to
Exemptions and Small System Variances
Strong statutory linkage exists between the small system variance
and exemption provisions in sections 1415(e) and 1416 of the Safe
Drinking Water Act and the State Revolving Fund provisions of section
1452 of the Act. This linkage was discussed in the proposal (63 FR
19448). The State Revolving Fund provisions and the variance and
exemption provisions can be used together to complete two important
tasks: (1) Ensure that State Revolving Fund assistance is targeted
toward those public water systems most in need of such assistance, and
(2) allow systems which receive such assistance to be able to use it in
a way that will either produce full compliance with an MCL within the
compliance schedule established by the State (in the case of systems
receiving an exemption), or improve the quality of water delivered to
consumers (in the case of systems receiving a variance).
This linkage is reflected in today's final rule. Section
142.20(b)(1) requires that before finding that management and
restructuring changes cannot be made, as part of the compliance options
analysis required for an exemption, the State must consider the
availability of SRF loan fund assistance to implement, among other
alternatives, activities consistent with the State's Capacity
Development Strategy to help the public water system acquire and
maintain technical, financial and managerial capacity to come into
compliance with the Act. Section 142.306(b)(2)(iv) requires
consideration of the possibility of obtaining financial assistance from
the drinking water SRF as part of the compliance options analysis
required for a small system variance.
Commenters expressed two concerns with these provisions. One
commenter was concerned that the provisions not be interpreted in a way
that would undermine State authority to develop individual Capacity
Development Strategies in accordance with section 1420 of the Act, or
used as grounds for withholding SRF funds because of a State decision
regarding a particular system. EPA is well aware that under section
1420(c)(4) of the Act, State decisions regarding implementation of the
Capacity Development Strategy with respect to individual systems are
not subject to review by the Administrator and may not serve as the
basis of withholding funds under section 1452 of the Act. EPA has no
intention of using its oversight of the variance and exemption
provisions of the Act as grounds for withholding funds under section
1452 of the Act, and does not see any conflict between these rules and
State authority with respect to Capacity Development Strategies under
section 1420 of the Act. Rather, the linkages in these rules are
provided to highlight a State's opportunity to use its Capacity
Development Strategy to assist systems in acquiring the technical,
financial and managerial capacity needed to either come into compliance
with an MCL or treatment technique after an appropriate period of time,
or to install and operate an appropriate variance technology.
Several commenters expressed concern with the requirement that the
SRF be considered as a possible funding source as part of the
compliance options analysis to obtain a small system variance. These
commenters indicated that small systems may lack the overall capacity
required to qualify for SRF loans, and that this requirement in today's
rule could be interpreted as limiting State flexibility in managing its
SRF programs. EPA does not believe that this is an issue. The
requirement to consider the SRF as a possible funding source does not
mean that the State must provide SRF assistance to a system seeking a
variance (or exemption), only that this option should be considered as
part of the initial compliance options analysis. States retain full
authority to allocate SRF funds in accordance with the provisions of
the Act. EPA believes that the requirement to consider the SRF as a
possible funding source to assist small systems in achieving compliance
is fully consistent with those provisions.
L. Exemption: Renewals for Small Systems
Under section 1416(b)(2)(A) of the Safe Drinking Water Act, an
exemption issued to a public water system must prescribe a schedule
requiring compliance by the system with each contaminant level and
treatment technique requirement with respect to which the exemption was
granted as expeditiously as practicable (as the State may reasonably
determine) but not later than three years after the otherwise
applicable compliance date established in section 1412(b)(10). Section
1416(b)(2)(C) states ``[i]n the case of a system which does not serve
more than a population of 3,300 and which needs financial assistance
for the necessary improvements, an exemption * * * may be renewed for
one or more additional 2-year periods, but not to exceed a total of 6
years, if the system establishes that it is taking all practicable
steps'' to meet the requirements of the established compliance
schedule.
The intensive compliance options analysis required, under
Sec. 142.20(b)(1) and Sec. 142.50(a), to be performed before an
exemption is initially granted should indicate whether an exemption is
appropriate. If an exemption is appropriate after the compliance
options analysis, the primacy agency should facilitate and work with
the system to ensure compliance as soon as practicable, but within
three years of the otherwise applicable compliance date, including
providing financial assistance under section 1452 of the Act. Under
Sec. 142.20(b)(2) and Sec. 142.56 of the rule, two-year extensions of
exemptions pursuant to section 1416(b)(2)(C) of the Act may only be
granted to systems which serve 3,300 or fewer people and which need
financial assistance, and upon State review of the small system's
[[Page 43843]]
progress and the State's subsequent determination that the small system
is taking all practicable steps to meet the requirements of the Act.
As discussed in the preamble to the proposed rule, the Agency
interprets the extension provisions for public water systems serving
less than 3,300 persons to allow the primacy agency to grant the
additional two-year periods at the time of initial issuance of the
exemption for those small systems that need financial assistance for
the necessary improvements. Public comments on this issue in the
proposed rule were generally supportive of this approach.
This interpretation is based on the statute and EPA's recognition
that there may be some instances where certain small systems serving
less than 3,300 persons may require more than three years to achieve
full compliance under an exemption. Additional time may allow for the
small system to acquire the necessary financial assistance,
restructure, find an alternative source water and/or make necessary
capital improvements. Compliance schedules under exemptions should
reflect a practical time line for the small public water system to meet
the established milestones as expeditiously as possible. The Agency
anticipates that most small systems will achieve full compliance under
exemptions in less than 3 years after the otherwise applicable
compliance date but recognizes that this determination should be made
on a case-by-case basis considering specific factors of the given small
public water system. Therefore, a system which serves less than 3,300
persons and which needs financial assistance for the necessary
improvements may receive a compliance schedule under an exemption with
milestone dates later than three years from the issuance date of the
exemption. In any case, the primacy agency is required to establish a
schedule requiring compliance as expeditiously as practicable but no
later than the statutory time frames.
This interpretation does not affect the requirement under section
1416(b)(2)(C) of the Act that the primacy agency must ``renew'' the
exemption every two years after the first 3 years to ensure that the
system is taking all practicable steps to meet the requirements of the
Act and the established compliance schedule. EPA interprets the
``renewal'' requirement to mean that the primacy agency must review the
system's compliance with the exemption and document its findings of
continued eligibility. The Agency anticipates that the primacy agency's
review of the public water system will involve a review of the public
water system's efforts to comply with the established milestones and
other requirements of the Act. Even though not required by section 1416
of the Act, the primacy State may wish to consider the incorporation of
public participation into this review process. If the primacy agency
determines that a small system is not taking all practical steps to
comply with the requirements, the exemption should not be continued and
the public water system would be subject to an enforcement response to
address violations of the established compliance schedule. Where an
exemption is continued, the primacy agency must ensure that at the end
of the exemption period, the public water system is in full compliance
with applicable national primary drinking water regulation.
The Agency received public comments requesting that the Agency
clarify how the 6-year limit on renewals of exemptions for small
systems applies to existing exemptions issued before enactment of the
1996 Amendments. As discussed above, under section 1416(b)(2)(C), a
State may renew an exemption issued to a small system serving less than
3,300 persons for one or more additional 2-year periods under certain
conditions, but not to exceed a total of 6 years. The Agency interprets
this provision to be effective upon the effective date of the 1996
Amendments to the Safe Drinking Water Act. Therefore, the six-year
limit on renewals of exemptions is effective as of August 6, 1996.
Therefore, for example, if a three-year, small system exemption was
issued by a primacy agency in 1993, the primacy agency may, under
certain conditions as specified in the Act, renew the exemption,
through extensions and the requisite reviews, until 2002. No existing
exemption for a small system may remain in effect for more than nine
years beyond the date that it was initially issued.
IV. Cost of Rule
The cost of the rule and economic analysis were described in detail
in the preamble to the proposed rule. (63 FR 19448-50)
Based upon this economic impact analysis (EIA), public water
systems would realize net economic benefits as a result of today's
rule. Results of the impact analysis show that, if all eligible public
water systems in all 56 States and territories apply for and are
granted variances under sections 1415(a) or 1415(e), or exemptions
under today's rule, for the rules considered in this analysis, then the
regulation will show a net annualized economic benefit of $573,706 to
the Agency, States, and public water systems, not including benefits
due to increased public health protection or savings associated with
the installation of affordable technologies. A summary of this EIA is
available in the Office of Water Docket, #W-97-26.
Based on this economic impact analysis, the variance and exemption
rule is not considered to have a significant impact in the form of an
unfunded mandate of $100,000,000 or more or in any year as identified
under the Unfunded Mandates Reform Act, nor would it have a significant
adverse economic impact on a substantial number of small entities, as
discussed in the section entitled ``Unfunded Mandates Reform Act'' in
the preamble to today's rule.
V. Other Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
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:
(1) 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;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of the
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because it may raise novel legal or policy issues. The rule seeks to
improve public health protection while providing regulatory relief to
small systems by encouraging the adoption, by small systems unable to
comply with drinking water standards, of affordable technologies that
will improve the quality of their water even if they do not achieve
full compliance with the MCL or treatment technique requirement for a
particular contaminant. Therefore, EPA submitted this action to OMB for
[[Page 43844]]
review. Substantive changes made in response to OMB suggestions or
recommendations have been documented in the public record.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), generally
requires the Agency to consider explicitly the effect of regulations on
small entities. However, under section 605(b) of the RFA, if the Agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities, the Agency is not required to
prepare an RFA.
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this rule will not have
a significant economic impact on a substantial number of small
entities. Regulations on variances and exemptions provide regulatory
relief from the costs of complying with a maximum contaminant level or
a treatment technique under a given national primary drinking water
regulation. As directed in the Safe Drinking Water Act, this rule
describes procedures and criteria by which small public water systems
which cannot afford the appropriate treatment to comply with a given
national primary drinking water regulation can receive a variance or
exemption. Thus, public water systems show a net economic benefit under
today's rule as a result of being granted a variance or exemption,
rather than bear process costs associated with litigation and
enforcement. Please see section IV, ``Cost of Rule'', in the preamble
to the proposed rule (63 FR 19448-50) for a more detailed discussion of
the economic costs and benefits of today's rule.
C. Paperwork Reduction Act
The information collection requirements in this rule have been
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. 270.39) to amend the current public Water System Supervision
Program ICR (OMB control number 2040-0090), and a copy may be obtained
from Sandy Farmer by mail at OP Regulatory Information Division; U.S.
Environmental Protection Agency (2137); 401 M St., SW.; Washington, DC
20460, by email at farmer.sandy@epamail.epa.gov, or by calling (202)
260-2740. A copy may also be downloaded off the internet at http://
www.epa.gov/icr. The information requirements are not effective until
OMB approves them.
Information required by this regulation allows the State or the
Administrator to determine that the circumstances at a public water
system satisfy the statutory conditions for granting a small system
variance or an exemption. Some of the required information allows the
Administrator and the public to determine that the public had adequate
opportunity to review and comment on a decision to grant a small system
variance. The information collection requirements of this rule are
mandatory for public water systems applying for either a variance or an
exemption and for primacy States that review and either grant or deny
these applications. Information collected by this rule will be provided
to the public to facilitate public involvement in this process.
Although it is impossible to determine the burden this rule would
impose with respect to seeking a variance or an exemption from a
drinking water regulation not yet promulgated, EPA did estimate the
burden with respect to the two regulations from which a variance or
exemption may hypothetically be sought. With respect to the lead and
copper rule and the phase II/V rule, the distribution of burden between
public water systems and states is approximately 13,050 hours and
109,080 hours respectively, for a total annualized burden of 122,130
hours. Expressed another way, in a monetization of these hours, all
public water systems would bear a total annual cost of approximately
$348,716, while States would bear an annual cost of $5,041,694.
Promulgation of this rule, however, is also expected to result in
significant reductions in the burden associated with litigation and
enforcement actions. EPA has estimated that public water systems would
reduce their annual burden by 54,648 hours or by $3,342,616 (a
monetization of these hours). States would reduce their annual burden
by 62,766 hours or by $2,863,321 (a monetization of these hours). The
projected burden reduction has not been netted out of the burden
estimate in the ICR because the Agency does not generally include
litigation and enforcement actions in its paperwork burden estimates
for the Public Water Supply Supervision Program. A more detailed
explanation of how EPA calculated these results can be found in the
Information Collection Request. 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 ways 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, OP Regulatory
Information Division; U.S. Environmental Protection Agency (2137); 401
M St., SW.; Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th St., NW.,
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
Comments are requested by September 14, 1998. Include the ICR number in
any correspondence.
D. Unfunded Mandates Reform Act
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, Tribal, and local
governments and the private sector. Under section 202 of the UMRA, the
Agency 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, Tribal, and local
governments, in the aggregate, or to the private sector, of $100
million or more in any one year.
Before promulgating an Agency rule for which a written statement is
needed, section 205 of the UMRA generally requires the Agency to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective, or least burdensome
alternative that achieves
[[Page 43845]]
the objectives of the rule. The provisions of section 205 of the UMRA
do not apply when they are inconsistent with applicable law. Moreover,
section 205 of the UMRA allows the Agency 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 the Agency establishes any regulatory requirements that may
significantly or uniquely affect small governments, including Tribal
governments, it must have developed a small government agency plan
under section 203 of the UMRA. 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 Agency 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. This rule imposes no enforceable
duty on any State, local or tribal governments or the private sector.
States or Tribes may choose whether to acquire or maintain primacy
under the Safe Drinking Water Act. Further, States and Tribes with
primacy may choose whether to issue variances and exemptions; they can
decide to not issue any exemptions or variances at all. If they choose
to issue variances or exemptions, they are only required to issue
variances and exemptions in a manner not less stringent than the
conditions under, and the manner in which, variances and exemptions may
be granted under section 1415 and 1416 of the SDWA. Thus, today's rule
is not subject to the requirements of section 202 and 205 of the UMRA.
Moreover, because this rule establishes procedures and criteria for
public water systems to obtain variances and exemptions from Safe
Drinking Water Act requirements, the Agency has determined that this
rule contains no regulatory requirements that might significantly or
uniquely adversely affect small governments and thus this rule is not
subject to the requirement of section 203 of UMRA.
E. Enhancing Intergovernmental Partnerships
To reduce the burden of Federal regulations on States and small
governments, the President issued Executive Order 12875, entitled
Enhancing the Intergovernmental Partnership, on October 28, 1993 (48 FR
58093). Under Executive Order 12875, EPA may not issue a regulation
that is not required by statute and that creates a mandate upon a
State, local or Tribal government unless the Federal government
provides the necessary funds to pay the direct costs incurred by the
State, local or Tribal government or EPA provides to the Office of
Management and Budget a description of the extent of the Agency's prior
consultation and written communications with elected officials and
other representatives of affected State, local and Tribal governments,
the nature of their concerns, and an Agency statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and Tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
As described in the preamble to the proposed rule (63 FR 19440-41),
the Agency held several meetings with a wide variety of State and local
representatives, who provided meaningful and timely input toward the
development of the proposed rule. Summaries of these meetings have been
included in the public docket for this rulemaking. In addition, the
Agency conducted outreach efforts to contact and inform Tribal groups
regarding this rulemaking.
F. Risk to Children Analysis and Environmental Justice
On April 21, 1997, the President issued Executive Order 13045
entitled Protection of Children From Environmental Health Risks and
Safety Risks (62 FR 19883). Under section 5 of the Order, a Federal
agency submitting a ``covered regulatory action'' to OMB for review
under Executive Order 12866 must provide information regarding the
environmental health or safety effects of the planned regulation on
children. A ``covered regulatory action'' is defined in section 2-202
as a substantive action in a rulemaking that (a) is likely to result in
a rule that may be economically significant'' under Executive Order
12866 and (b) concerns an environmental health risk or safety risk that
an agency has reason to believe may disproportionally affect children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the agency. While this rule is not a `` covered regulatory action''
as defined in the Order because it is not economically significant (see
section IV above), EPA believes that the rule has the potential to
reduce risks to children, as discussed in more detail below.
In addition, under Executive Order 12898, entitled ``Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations'', dated February 11, 1994, the Agency must make
achieving environmental justice part of its mission.
The Agency believes that this rule has the potential to
significantly reduce risks to children caused by inadequate drinking
water and address environmental justice problems. After a small public
water system applies for a small system variance, Sec. 142.306(b) of
the rule requires the State to perform a compliance options analysis
for the system. Small noncompliant public water systems are often
financially distressed as a result of the service population's
inability to pay for safe drinking water and other factors. The public
water system could have unprotected source waters or be unable to
afford the appropriate treatment technology or technique, certified
operator, and/or adequate transmission and distribution systems. As
required by Sec. 142.306(b) of the rule, an analysis of the applicant
system's compliance options will provide insight into alternative means
of compliance. This might include some form of restructuring or
consolidation with another system, development of a cleaner, safer
water source, or using some alternative treatment technique or
technology.
If according to a State's affordability criteria, these compliance
options are unaffordable for a drinking water system, the State may
grant the system a variance. Prior to issuing a variance,
Sec. 142.306(b)(5) of the rule requires that the State find that the
terms and conditions of a small system variance ensure ``adequate
protection of human health.'' Similarly, an exemption can only be
granted if its conditions ensure that there is no ``unreasonable risk
to health.'' Both findings are made at the State level on a case-
specific basis.
The intent of the small system variance subpart of the rule is to
move a system, which is not complying with Safe Drinking Water Act
standards because the treatment required is unaffordable, toward or
into compliance
[[Page 43846]]
status by requiring the system to install, operate and maintain
treatment which is affordable and protective of human health. Although
the level of treatment provided may not meet the maximum contaminant
level, it must be determined to be protective of human health--both by
the Agency in identifying the approved variance technology and by the
primacy State in making such a finding--if the variance is granted.
The Agency believes that a system operating under a small system
variance will provide better treatment than that provided by a system
in noncompliance. Although the drinking water system may not be able to
provide water that is consistently below the maximum contaminant level,
a water system operating under a variance will be able to create a net
gain in the quality of its finished water above what it could provide
before installing a variance technology. In turn, this will lead to a
net gain in public health protection for infants, children, and nursing
or pregnant women as well as for persons in low-income areas, thus
protecting children's health as well as alleviating environmental
justice problems.
In addition to requirements that ensure public participation in
granting variances and exemptions, section 142.308(c)(7) of the rule
requires that, in communities with a large proportion of non-English
speaking persons, as defined by the primacy agency, notices provided to
the public must include information in the appropriate language
regarding the content and importance of the notice. EPA believes that
this provision also addresses Executive Order 12898.
For these reasons, the Agency believes that this rule is consistent
with, and implements, the Executive Order on protecting children as
well as the Executive Order addressing environmental justice.
G. 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 activities, unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standards
bodies. Where available and potentially applicable voluntary consensus
standards are not used by the Agency, 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 is procedural and does not involve or require the use of any
technical standards, the Agency does not believe that this Act is
applicable to this rule. Moreover, the Agency is unaware of any
voluntary consensus standards relevant to this rulemaking. Therefore,
even if the Act were applicable to this kind of rulemaking, the Agency
does not believe that there are any ``available or potentially
applicable'' voluntary consensus standards.
H. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as enacted
under the Small Business Regulatory Enforcement Fairness Act of 1996,
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. 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
prior to publication of the rule in the Federal Register. This action
is not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will
be effective on September 14, 1998.
VI. Response to Public Comments
The record for this rulemaking has been established under docket
number W-97-26, and includes the Agency's response to all comments
submitted, supporting documentation, and copies of comments received,
including printed paper versions of electronic comments.
List of Subjects in 40 CFR Parts 141 and 142
Environmental protection, Administrative practice and procedures,
Chemicals, Indian-lands, Intergovernmental relations, Radiation
protection, Reporting and recordkeeping requirements, Water supply.
Dated: August 6, 1998.
Carol M. Browner,
Administrator.
For the reasons set out 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 is revised to read as
follows:
Authority: 42 U.S.C. 300f, 300g-1, 300g-2, 300g-3, 300g-4, 300g-
5, 300g-6, 300j-4, 300j-9, and 300j-11.
2. Section 141.4(a) is revised to read as follows:
Sec. 141.4 Variances and exemptions.
(a) Variances or exemptions from certain provisions of these
regulations may be granted pursuant to sections 1415 and 1416 of the
Act and subpart K of part 142 of this chapter (for small system
variances) by the entity with primary enforcement responsibility,
except that variances or exemptions from the MCL for total coliforms
and variances from any of the treatment technique requirements of
subpart H of this part may not be granted.
* * * * *
PART 142--NATIONAL PRIMARY DRINKING WATER REGULATIONS
IMPLEMENTATION
3. The authority citation for part 142 continues to read as
follows:
Authority: 42 U.S.C. 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-
5, 300g-6, 300j-4, and 300j-9.
4. Section 142.10 is amended by revising paragraph (d) to read as
follows:
Sec. 142.10 Requirements for a determination of primary enforcement
responsibility.
* * * * *
(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
* * * * *
[[Page 43847]]
5. Section 142.20 is revised to read as follows:
Sec. 142.20 State-issued variances and exemptions under Section
1415(a) and Section 1416 of the Act.
(a) States with primary enforcement responsibility may issue
variances to public water systems (other than small system variances)
from the requirements of primary drinking water regulations under
conditions and in a manner which are not less stringent than the
requirements under Section 1415(a) of the Act. In States that do not
have primary enforcement responsibility, variances may be granted by
the Administrator pursuant to Subpart E of this part.
(1) A State must document all findings that are required under
Section 1415(a) of the Act.
(2) If a State prescribes a schedule pursuant to section 1415(a) of
the Act requiring compliance with a contaminant level for which the
variance is granted later than five years from the date of issuance of
the variance the State must--
(i) Document its rationale for the extended compliance schedule;
(ii) Discuss the rationale for the extended compliance schedule in
the required public notice and opportunity for public hearing; and
(iii) Provide the shortest practicable time schedule feasible under
the circumstances.
(b) States with primary enforcement responsibility may issue
exemptions from the requirements of primary drinking water regulations
under conditions and in a manner which are not less stringent than the
requirements under Section 1416 of the Act. In States that do not have
primary enforcement responsibility, exemptions may be granted by the
Administrator pursuant to Subpart F of this part.
(1) A State must document all findings that are required under
Section 1416 of the Act:
(i) Before finding that management and restructuring changes cannot
be made, a State must consider the following measures, and the
availability of State Revolving Loan Fund assistance, or any other
Federal or State program, that is reasonably likely to be available
within the period of the exemption to implement these measures:
(A) Consideration of rate increases, accounting changes, the
appointment of a State-certified operator under the State's Operator
Certification program, contractual agreements for joint operation with
one or more public water systems;
(B) Activities consistent with the State's Capacity Development
Strategy to help the public water system acquire and maintain
technical, financial, and managerial capacity to come into compliance
with the Act; and
(C) Ownership changes, physical consolidation with another public
water system, or other feasible and appropriate means of consolidation
which would result in compliance with the Act;
(ii) The State must consider the availability of an alternative
source of water, including the feasibility of partnerships with
neighboring public water systems, as identified by the public water
system or by the State consistent with the Capacity Development
Strategy.
(2) In the case of a public water system serving a population of
not more than 3,300 persons and which needs financial assistance for
the necessary improvements under the initial compliance schedule, an
exemption granted by the State under section 1416(b)(2)(B)(i) or (ii)
of the Act may be renewed for one or more additional 2-year periods,
but not to exceed a total of 6 additional years, only if the State
establishes that the public water system is taking all practicable
steps to meet the requirements of Section 1416(b)(2)(B) of the Act and
the established compliance schedule to achieve full compliance with the
contaminant level or treatment technique for which the exemption was
granted. A State must document its findings in granting an extension
under this paragraph.
Subpart E--Variances Issued by the Administrator Under Section
1415(a) of the Act
6. The heading for Subpart E is revised to read as set forth above.
7. Section 142.42 is amended by revising paragraph (c) to read as
follows:
Sec. 142.42 Consideration of a variance request.
* * * * *
(c) A variance may be issued to a public water system on the
condition that the public water system install the best technology,
treatment techniques, or other means, which the Administrator finds are
available (taking costs into consideration) and based upon an
evaluation satisfactory to the Administrator that indicates that
alternative sources of water are not reasonably available to the public
water system.
* * * * *
Subpart F--[Amended]
8. Section 142.50 is revised to read as follows:
Sec. 142.50 Requirements for an exemption.
(a) The Administrator may exempt any public water system within a
State that does not have primary enforcement responsibility from any
requirement regarding a maximum contaminant level or any treatment
technique requirement, or from both, of an applicable national primary
drinking water regulation upon a finding that--
(1) Due to compelling factors (which may include economic factors,
including qualification of the public water system as a system serving
a disadvantaged community pursuant to section 1452(d) of the Act), the
public water system is unable to comply with such contaminant level or
treatment technique requirement or to implement measures to develop an
alternative source of water supply;
(2) The public water system was in operation on the effective date
of such contaminant level or treatment technique requirement, or for a
public water system that was not in operation by that date, no
reasonable alternative source of drinking water is available to such
new public water system;
(3) The granting of the exemption will not result in an
unreasonable risk to health; and
(4) Management or restructuring changes (or both), as provided in
Sec. 142.20(b)(1)(i), cannot reasonably be made that will result in
compliance with the applicable national primary drinking water
regulation or, if compliance cannot be achieved, improve the quality of
the drinking water.
(b) No exemption shall be granted unless the public water system
establishes that the public water system is taking all practicable
steps to meet the standard; and
(1) The public water system cannot meet the standard without
capital improvements which cannot be completed prior to the date
established pursuant to Section 1412(b)(10) of the Act;
(2) In the case of a public water system which needs financial
assistance for the necessary improvements, the public water system has
entered into an agreement to obtain such financial assistance or
assistance pursuant to Section 1452 of the Act, or any other Federal or
State program that is reasonably likely to be available within the
period of the exemption; or
(3) The public water system has entered into an enforceable
agreement to
[[Page 43848]]
become a part of a regional public water system.
(c) A public water system may not receive an exemption under this
subpart if the public water system was granted a variance under Section
1415(e) of the Act.
9. Section 142.53 is amended by revising paragraph (c)(1) to read
as follows:
Sec. 142.53 Disposition of an exemption request.
* * * * *
(c) * * *
(1) Compliance (including increments of progress or measures to
develop an alternative source of water supply) by the public water
system with each contaminant level requirement or treatment technique
requirement with respect to which the exemption was granted; and
* * * * *
10. Section 142.55 is amended by revising paragraph (b) and
removing and reserving paragraph (c) to read as follows:
Sec. 142.55 Final Schedule.
* * * * *
(b) Such schedule must require compliance with each contaminant
level and treatment technique requirement with respect to which the
exemption was granted as expeditiously as practicable but not later
than 3 years after the otherwise applicable compliance date established
in section 1412(b)(10) of the Act.
(c) [Reserved].
11. Section 142.56 is revised to read as follows:
Sec. 142.56 Extension of date for compliance.
In the case of a public water system which serves a population of
not more than 3,300 persons and which needs financial assistance for
the necessary improvements, an exemption granted under Sec. 142.50(b)
(1) or (2) may be renewed for one or more additional 2-year periods,
but not to exceed a total of 6 additional years, if the public water
system establishes that the public water system is taking all
practicable steps to meet the requirements of section 1416(b)(2)(B) of
the Act and the established compliance schedule.
12. Subpart K is added to read as follows:
Subpart K--Variances for Small System
Sec.
General Provisions
142.301 What is a small system variance?
142.302 Who can issue a small system variance?
142.303 Which size public water systems can receive a small system
variance?
142.304 For which of the regulatory requirements is a small system
variance available?
142.305 When can a small system variance be granted by a State?
Review of Small System Variance Application
142.306 What are the responsibilities of the public water system,
State and the Administrator in ensuring that sufficient information
is available and for evaluation of a small system variance
application?
142.307 What terms and conditions must be included in a small
system variance?
Public Participation
142.308 What public notice is required before a State or the
Administrator proposes to issue a small system variance?
142.309 What are the public meeting requirements associated with
the proposal of a small system variance?
142.310 How can a person served by the public water system obtain
EPA review of a State proposed small system variance?
EPA Review and Approval of Small System Variances
142.311 What procedures allow for the Administrator to object to a
proposed small system variance or overturn a granted small system
variance for a public water system serving 3,300 or fewer persons?
142.312 What EPA action is necessary when a State proposes to grant
a small system variance to a public water system serving a
population of more than 3,300 and fewer than 10,000 persons?
142.313 How will the Administrator review a State's program under
this subpart?
Subpart K--Variances for Small System
General Provisions
Sec. 142.301 What is a small system variance?
Section 1415(e) of the Act authorizes the issuance of variances
from the requirement to comply with a maximum contaminant level or
treatment technique to systems serving fewer than 10,000 persons. The
purpose of this subpart is to provide the procedures and criteria for
obtaining these variances. The regulations in this subpart shall take
effect on September 14, 1998.
Sec. 142.302 Who can issue a small system variance?
A small system variance under this subpart may only be issued by
either:
(a) A State that is exercising primary enforcement responsibility
under Subpart B for public water systems under the State's
jurisdiction; or
(b) The Administrator, for a public water system in a State which
does not have primary enforcement responsibility.
Sec. 142.303 Which size public water systems can receive a small
system variance?
(a) A State exercising primary enforcement responsibility for
public water systems (or the Administrator for other systems) may grant
a small system variance to public water systems serving 3,300 or fewer
persons.
(b) With the approval of the Administrator pursuant to
Sec. 142.312, a State exercising primary enforcement responsibility for
public water systems may grant a small system variance to public water
systems serving more than 3,300 persons but fewer than 10,000 persons.
(c) In determining the number of persons served by the public water
system, the State or Administrator must include persons served by
consecutive systems. A small system variance granted to a public water
system would also apply to any consecutive system served by it.
Sec. 142.304 For which of the regulatory requirements is a small
system variance available?
(a) A small system variance is not available under this subpart for
a national primary drinking water regulation for a microbial
contaminant (including a bacterium, virus, or other organism) or an
indicator or treatment technique for a microbial contaminant.
(b) A small system variance under this subpart is otherwise only
available for compliance with a requirement specifying a maximum
contaminant level or treatment technique for a contaminant with respect
to which;
(1) a national primary drinking water regulation was promulgated on
or after January 1, 1986; and
(2) the Administrator has published a small system variance
technology pursuant to Section 1412(b)(15) of the Act.
Note to paragraph (b)(1): Small system variances are not
available for public water systems above the pre-1986 maximum
contaminant level even if subsequently revised. If the Agency
revises a pre-1986 maximum contaminant level and makes it more
stringent, then a variance would be available for that contaminant,
but only up to the pre-1986 maximum contaminant level.
Sec. 142.305 When can a small system variance be granted by a State?
No small system variance can be granted by a State until the later
of the following:
(a) 90 days after the State proposes to grant the small system
variance;
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(b) If a State is proposing to grant a small system variance to a
public water system serving 3,300 or fewer persons and the
Administrator objects to the small system variance, the date on which
the State makes the recommended modifications or responds in writing to
each objection; or
(c) If a State is proposing to grant a small system variance to a
public water system serving a population more than 3,300 and fewer than
10,000 persons, the date the Administrator approves the small system
variance. The Administrator must approve or disapprove the variance
within 90 days after it is submitted to the Administrator for review.
Review of Small System Variance Application
Sec. 142.306 What are the responsibilities of the public water system,
State and the Administrator in ensuring that sufficient information is
available and for evaluation of a small system variance application?
(a) A public water system requesting a small system variance must
provide accurate and correct information to the State or the
Administrator to issue a small system variance in accordance with this
subpart. A State may assist a public water system in compiling
information required for the State or the Administrator to issue a
small system variance in accordance with this subpart.
(b) Based upon an application for a small system variance and other
information, and before a small system variance may be proposed under
this subpart, the State or the Administrator must find and document the
following:
(1) The public water system is eligible for a small system variance
pursuant to Secs. 142.303 (i.e., the system serves a population of
fewer than 10,000 persons) and 142.304 (i.e., the contaminant for which
the small system variance is sought is not excluded from variance
eligibility);
(2) The public water system cannot afford to comply, in accordance
with the affordability criteria established by the State (or by the
Administrator in States which do not have primary enforcement
responsibility), with the national primary drinking water regulation
for which a small system variance is sought, including by:
(i) Treatment;
(ii) Alternative sources of water supply;
(iii) Restructuring or consolidation changes, including ownership
change and/or physical consolidation with another public water system;
or
(iv) Obtaining financial assistance pursuant to Section 1452 of the
Act or any other Federal or State program;
(3) The public water system meets the source water quality
requirements for installing the small system variance technology
developed pursuant to guidance published under section 1412(b)(15) of
the Act;
(4) The public water system is financially and technically capable
of installing, operating and maintaining the applicable small system
variance technology; and
(5) The terms and conditions of the small system variance, as
developed through compliance with Sec. 142.307, ensure adequate
protection of human health, considering the following:
(i) The quality of the source water for the public water system;
and
(ii) Removal efficiencies and expected useful life of the small
system variance technology.
Sec. 142.307 What terms and conditions must be included in a small
system variance?
(a) A State or the Administrator must clearly specify enforceable
terms and conditions of a small system variance.
(b) The terms and conditions of a small system variance issued
under this subpart must include, at a minimum, the following
requirements:
(1) Proper and effective installation, operation and maintenance of
the applicable small system variance technology in accordance with
guidance published by the Administrator pursuant to section 1412(b)(15)
of the Act, taking into consideration any relevant source water
characteristics and any other site-specific conditions that may affect
proper and effective operation and maintenance of the technology;
(2) Monitoring requirements, for the contaminant for which a small
system variance is sought, as specified in 40 CFR part 141; and
(3) Any other terms or conditions that are necessary to ensure
adequate protection of public health, which may include:
(i) Public education requirements; and
(ii) Source water protection requirements.
(c) The State or the Administrator must establish a schedule for
the public water system to comply with the terms and conditions of the
small system variance which must include, at a minimum, the following
requirements:
(1) Increments of progress, such as milestone dates for the public
water system to apply for financial assistance and begin capital
improvements;
(2) Quarterly reporting to the State or Administrator of the public
water system's compliance with the terms and conditions of the small
system variance;
(3) Schedule for the State or the Administrator to review the small
system variance under paragraph (d) of this section; and
(4) Compliance with the terms and conditions of the small system
variance as soon as practicable but not later than 3 years after the
date on which the small system variance is granted. The Administrator
or State may allow up to 2 additional years if the Administrator or
State determines that additional time is necessary for the public water
system to:
(i) Complete necessary capital improvements to comply with the
small system variance technology, secure an alternative source of
water, or restructure or consolidate; or
(ii) Obtain financial assistance provided pursuant to section 1452
of the Act or any other Federal or State program.
(d) The State or the Administrator must review each small system
variance granted not less often than every 5 years after the compliance
date established in the small system variance to determine whether the
public water system continues to meet the eligibility criteria and
remains eligible for the small system variance and is complying with
the terms and conditions of the small system variance. If the public
water system would no longer be eligible for a small system variance,
the State or the Administrator must determine whether continuing the
variance is in the public interest. If the State or the Administrator
finds that continuing the variance is not in the public interest, the
variance must be withdrawn.
Public Participation
Sec. 142.308 What public notice is required before a State or the
Administrator proposes to issue a small system variance?
(a) At least fifteen (15) days before the date of proposal, and at
least thirty (30) days prior to a public meeting to discuss the
proposed small system variance, the State, Administrator, or public
water system as directed by the State or Administrator, must provide
notice to all persons served by the public water system. For billed
customers, identified in paragraph (a)(1) of this section, this notice
must include the information listed in paragraph (c) of this section.
For other persons regularly served by the system, identified in
paragraph (a)(2) of this section, the notice shall include the
information identified in paragraph (d) of this section. Notice must be
provided to all persons served by:
[[Page 43850]]
(1) Direct mail or other home delivery to billed customers or other
service connections, and
(2) Any other method reasonably calculated to notify, in a brief
and concise manner, other persons regularly served by the system. Such
methods may include publication in a local newspaper, posting in public
places or delivery to community organizations.
(b) At the time of proposal, the State must publish a notice in the
State equivalent to the Federal Register or a newspaper or newspapers
of wide circulation in the State, or, in the case of the Administrator,
in the Federal Register. This notice shall include the information
listed in paragraph (c) of this section.
(c) The notice in paragraphs (a)(1) and (b) of this section must
include, at a minimum, the following:
(1) Identification of the contaminant[s] for which a small system
variance is sought;
(2) A brief statement of the health effects associated with the
contaminant[s] for which a small system variance is sought using
language in Appendix C of Part 141 Subpart O of this chapter;
(3) The address and telephone number at which interested persons
may obtain further information concerning the contaminant and the small
system variance;
(4) A brief summary, in easily understandable terms, of the terms
and conditions of the small system variance;
(5) A description of the consumer petition process under
Sec. 142.310 and information on contacting the EPA Regional Office;
(6) a brief statement announcing the public meeting required under
Sec. 142.309(a), including a statement of the purpose of the meeting,
information regarding the time and location for the meeting, and the
address and telephone number at which interested persons may obtain
further information concerning the meeting; and
(7) In communities with a large proportion of non-English-speaking
residents, as determined by the primacy agency, information in the
appropriate language regarding the content and importance of the
notice.
(d) The notice in paragraph (a)(2) of this section must provide
sufficient information to alert readers to the proposed variance and
direct them where to receive additional information.
(e) At its option, the State or the Administrator may choose to
issue separate notices or additional notices related to the proposed
small system variance, provided that the requirements in paragraphs (a)
through (d) of this section are satisfied.
(f) Prior to promulgating the final variance, the State or the
Administrator must respond in writing to all significant public
comments received relating to the small system variance. Response to
public comment and any other documentation supporting the issuance of a
variance must be made available to the public after final promulgation.
Sec. 142.309 What are the public meeting requirements associated with
the proposal of a small system variance?
(a) A State or the Administrator must provide for at least one (1)
public meeting on the small system variance no later than 15 days after
the small system variance is proposed.
(b) At the time of the public meeting, the State or Administrator
must prepare and make publicly available, in addition to the
information listed in Sec. 142.308(c), either:
(1) The proposed small system variance, if the public meeting
occurs after proposal of the small system variance; or
(2) A draft of the proposed small system variance, if the public
meeting occurs prior to proposal of the proposed small system variance.
(c) Notice of the public meeting must be provided in the manner
required under Sec. 142.308 at least 30 days in advance of the public
meeting. This notice must be provided by the State, the Administrator,
or the public water system as directed by the State or Administrator.
Sec. 142.310 How can a person served by the public water system obtain
EPA review of a State proposed small system variance?
(a) Any person served by the public water system may petition the
Administrator to object to the granting of a small system variance
within 30 days after a State proposes to grant a small system variance
for a public water system.
(b) The Administrator must respond to a petition filed by any
person served by the public water system and determine whether to
object to the small system variance under Sec. 142.311, no later than
60 days after the receipt of the petition.
EPA Review And Approval of Small System Variances
Sec. 142.311 What procedures allow the Administrator to object to a
proposed small system variance or overturn a granted small system
variance for a public water system serving 3,300 or fewer persons?
(a) At the time a State proposes to grant a small system variance
under this subpart, the State must submit to the Administrator the
proposed small system variance and all supporting information,
including any written public comments received prior to proposal.
(b) The Administrator may review and object to any proposed small
system variance within 90 days of receipt of the proposed small system
variance. The Administrator must notify the State in writing of each
basis for the objection and propose a modification to the small system
variance to resolve the concerns of the Administrator. The State must
make the recommended modification, respond in writing to each
objection, or withdraw the proposal to grant the small system variance.
(c) If the State issues the small system variance without resolving
the concerns of the Administrator, the Administrator may overturn the
State decision to grant the variance if the Administrator determines
that the State decision does not comply with the Act or this rule.
Sec. 142.312 What EPA action is necessary when a State proposes to
grant a small system variance to a public water system serving a
population of more than 3,300 and fewer than 10,000 persons?
(a) At the time a State proposes to grant a small system variance
to a public water system serving a population of more than 3,300 and
fewer than 10,000 persons, the State must submit the proposed small
system variance and all supporting information, including public
comments received prior to proposal, to the Administrator.
(b) The Administrator must approve or disapprove the small system
variance within 90 days of receipt of the proposed small system
variance and supporting information. The Administrator must approve the
small system variance if it meets each requirement within the Act and
this rule.
(c) If the Administrator disapproves the small system variance, the
Administrator must notify the State in writing of the reasons for
disapproval and the small system variance does not become effective.
The State may resubmit the small system variance for review and
approval with modifications to address the objections stated by the
Administrator.
Sec. 142.313 How will the Administrator review a State's program under
this subpart?
(a) The Administrator must periodically review each State program
under this subpart to determine whether small system variances granted
by the State comply with the requirements of
[[Page 43851]]
the Act, this rule and the affordability criteria developed by the
State.
(b) If the Administrator determines that small system variances
granted by a State are not in compliance with the requirements of the
Act, this rule or the affordability criteria developed by the State,
the Administrator shall notify the State in writing of the deficiencies
and make public the determinations.
(c) The Administrator's review will be based in part on quarterly
reports prepared by the States pursuant to Sec. 142.15(a)(1) relating
to violations of increments of progress or other violated terms or
conditions of small system variances.
[FR Doc. 98-21746 Filed 8-13-98; 8:45 am]
BILLING CODE 6560-50-P
