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Revision of Existing Variance and Exemption Regulations to Comply With Requirements of the Safe Drinking Water Act
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 20, 1998 (Volume 63, Number 75)]
[Proposed Rules]
[Page 19438-19457]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20ap98-40]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 142
[FRL-5999-5]
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: Proposed rule.
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SUMMARY: The Agency is proposing 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. A
new subpart, Subpart K, created to implement a new section in the
Amendments, describes procedures and conditions under which a primacy
State/Tribe (please note that throughout this preamble and proposed
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 . . .'') or
the 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: Written comments must be received by midnight May 20, 1998.
ADDRESSES: Written comments should be submitted to: W-97-26 Comment
Clerk, Water Docket (mailcode MC4101), Environmental Protection Agency,
401 M Street, S.W., Washington, D.C., 20460.
The record is available for inspection at the Water Docket,
Washington, D.C., 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
[[Page 19439]]
Enforcement and Compliance Assurance, Office of Regulatory Enforcement,
Water Enforcement Division (Mailcode: 2243-A), Environmental Protection
Agency, 401 M Street, S.W., Washington, D.C., 20460. Phone: (202)-564-
6032.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority
A. Overview
B. New Small System Variances
C. General Variances
D. Exemptions
II. Consultation With Public Water Systems, State, Tribal and Local
Governments, Environmental Groups, and Public Interest Groups
III. Discussion of Proposed Rule
A. Purpose and Applicability
B. Effective Date
C. Primacy Requirements
D. Rationale for New Subpart
E. Rationale for Format of New Subpart
F. General Provisions in Proposed Subpart K
G. 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
H. Sections 142.311 and 142.312. Bases for Administrator's
Objections to State-Proposed Small System Variances
I. Section 142.313. Bases for Administrator's Review of State
Small System Variance Program
J. General Variances: Time Limitation
K. Relationship of Exemptions and Small System Variances
L. State Revolving Fund Linkage to Exemptions
M. 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 and Executive Order 12875
E. Enhancing Intergovernmental Partnerships
F. Protection of Children and Environmental Justice
G. National Technology Transfer and Advancement Act
VI. Request for Public Comments
Regulated Persons
Potentially regulated persons are public water systems (PWSs).
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Category Example of regulated entities
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Industry..................... May include privately-owned utilities,
ancillary water systems, homeowner's
associations, mobile home parks,
Municipalities; County Governments;
Water districts; Water and Sewer
Authorities.
State/Local/Tribal May include publicly-owned PWS's,
governments. municipalities, county governments,
water districts, State drinking water
programs.
Federal government........... Federally-owned facilities.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather it provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that the Agency is now
aware could potentially be affected by this action. Other types of
entities not listed in this table could also be affected. 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.
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.
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 comply with less stringent, but still protective,
standards based on a specified technology available to the system. 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
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.
Section 1415(e)(1) identifies, through service population, the size of
systems which may seek such small system variances. Specifically, this
section limits such small system variances to public water systems
serving 3,300 or fewer persons, and, with the approval of the
Administrator, to public water systems serving more than 3,300 persons
but less than 10,000 persons.
Section 1415(e)(6) states that such small system variances are not
available for (1) any maximum contaminant level (MCL) or treatment
techniques 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 a microbial contaminant.
Sections 1415(e)(2) and (3) identify the conditions under which
small systems may receive such a variance. Section 1415(e)(2)(A) states
that one such condition is that a variance technology which has been
identified by the Administrator under section 1412(b)(15) is applicable
to the size and source water quality conditions of the public water
system. In addition, under section 1415(e)(2)(B), the system is
required to install, operate, and maintain such treatment technology,
treatment technique, or other means, in accordance with guidance or
regulations issued by the Administrator. Section 1415(e)(2)(C)
indicates that the small system variance is also contingent upon
whether a State/Tribe exercising primary enforcement responsibility (or
the Agency, where a State/Tribe does not have primacy) determines that
certain conditions are met, namely that (1) the system cannot afford,
in accordance with State/Tribal (or EPA) affordability criteria, to
comply through
[[Page 19440]]
treatment, alternative sources of water supplies, or restructuring and
consolidation, and (2) the variance will ensure adequate protection of
human health (section 1415(e)(3)).
Section 1415(e)(4) describes the maximum length of schedules to
comply with the conditions of such variances (three years), and
possible additional time (two additional years) to achieve compliance
with the variance, under certain conditions.
Section 1415(e)(5) requires the Administrator or primacy State/
Tribe to review each variance not less than every five years after the
compliance date established in the variance to ensure that the system
remains eligible for the variance and is conforming to each condition
of the variance.
Section 1415(e)(7)(A) requires the Administrator to promulgate,
within two years of enactment, regulations for variances to be granted
under the newly established program. These regulations must specify, at
a minimum, procedures to grant and deny variances, including public
participation requirements, requirements for proper installation and
maintenance of approved variance technology and sufficient financial
and technical capability to operate such treatment, eligibility
requirements for a variance for each NPDWR, and information
requirements for variance applications. Section 1415(e)(7)(B) requires
the Administrator to publish information by February 6, 1998, to assist
primacy States/Tribes in developing affordability criteria and requires
State/Tribal review of such criteria not less than every five years.
Section 1415(e)(8)(A) requires the Administrator to periodically
review the primacy State's/Tribe's variance program to determine
whether variances granted by the State/Tribe comply with the
requirements of the Act. If the Administrator determines that the
variances granted by the primacy State/Tribe are not in compliance with
the State's/Tribe's affordability criteria and the requirements of the
Act, section 1415(e)(8)(B) requires the Administrator to notify the
State in writing of the deficiencies and to make public the
determination.
Section 1415(e)(9) requires a primacy State/Tribe, 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. The Administrator is required to approve or disapprove the
variance within 90 days. If the Administrator disapproves of the
variance, the Administrator is required to notify the State in writing
of the reasons for such disapproval. The State may then revise and
resubmit the modified variance for approval by the Administrator.
Section 1415(e)(10) addresses objections to small system variances.
Section 1415(e)(10)(A) states that the Administrator may review and
object to any variance proposed to be granted by the State/Tribe, if
such objection is communicated to the State/Tribe not later than 90
days after the State/Tribe proposes to grant the variance. Such
objections must be communicated in writing, identifying both the basis
for the objection and proposed modifications. The State/Tribe shall
then make the recommended modifications or respond in writing to each
objection. If the State/Tribe proceeds to issue the variance without
resolving the Administrator's concerns, the Administrator may overturn
the State/Tribal decision to grant the variance if the State/Tribal
decision does not comply with the Act or regulations.
Section 1415(e)(10)(B) addresses objections based on petitions to
the Administrator by consumers. Under this section, not later than 30
days after a primacy State/Tribe proposes to grant a small system
variance, any person served by the public water system may petition the
Administrator to object to the granting of the variance. The
Administrator is required to respond to the petition and determine
whether to object to the variance not later than 60 days after the
receipt of the petition.
Also regarding objections to small system variances, section
1415(e)(10)(C) states that no variance shall be granted by a State/
Tribe until the later of the following: (1) 90 days after the State/
Tribe proposes to grant a variance, or (2) following the
Administrator's objection to a variance, the date on which the State/
Tribe makes the recommended modifications or responds in writing to
each objection.
C. General Variances
In the 1996 Amendments to the SDWA, Congress modified the language
governing general variances (i.e., those variances available to systems
of any size). Under the newly enacted section 1415(a)(1)(A), a variance
may be granted on the condition that the system install the best
technology, treatment techniques, 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. In the new Amendments,
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.
D. Exemptions
In a major change in the exemption provisions of the SDWA, section
1416(b)(2)(A) deleted provisions which limited an exemption to 12
months, subject to a three-year extension. 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).
The only exception to this exemption time period is in section
1416(b)(2)(C) 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.
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. Prior to the 1996
amendments, section 1416 authorized a State that has primary
enforcement responsibility under the SDWA (or EPA where the State/Tribe
does not have such primacy) to exempt a public water system from the
NPDWR if (1) the system could not comply with the regulation and (2) no
unreasonable risk to public health would result from the exemption.
Section 1416(a) now requires the State/Tribe, in determining whether an
exemption may be granted, to also 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.
Section 1416(b)(2)(D) 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
[[Page 19441]]
consulted with State representatives, as well as a broad range of other
interested parties, in the development of this proposed rule.
On September 16, 1997, early in the regulatory development process,
EPA held its first stakeholders meeting in Washington, D.C., to discuss
the amendments as they apply to Safe Drinking Water Act variances and
exemptions. Participants in this day-long meeting included industry
representatives, State representatives, and representatives of
environmental groups. This meeting was designed specifically to solicit
views and ideas from a number of interested stakeholders at a very
early stage in the process, prior to development of internal drafts. A
summary of this meeting was subsequently provided to attendees, as well
as to interested persons who were unable to attend.
On September 17, 1997, as a follow-up to the previous day's
meeting, the Agency met with a representative of the Association of
State Drinking Water Administrators (ASDWA) and a State representative
to discuss implementation of the 1996 variances and exemptions
provisions. The stakeholders provided early comments on possible
procedures to obtain a small system variance, including at what point
in the process the public water system or the State should notify the
public.
On September 30, 1997, in conjunction with the National Rural Water
Association national conference in Indianapolis, Indiana, the Agency
met with community water system operators and industry representatives
to further discuss revisions to the variances and exemptions
regulations. Discussion during this meeting focused primarily on (1)
the extent to which public water systems should be expected to assemble
information when applying for a variance, (2) public notification
associated with the variance, and (3) required terms and conditions of
small system variances.
On October 20, 1997, in conjunction with the ASDWA national meeting
in Savannah, GA, the Agency presented a summary of the draft variance
and exemption regulations. At that time, all States were given the
opportunity to participate in a discussion regarding the content of the
regulations.
On October 24, 1997, the Agency met with representatives of
environmental and consumer groups to discuss their perspective on
possible revisions to the variances and exemptions regulations.
Discussion during this meeting focused primarily on public
participation and notification concerns, variance eligibility, and
criteria for reviewing and granting small system variances.
Although the Agency has not consulted directly with representatives
of Tribal governments in the development of this proposal, the Agency
will make efforts to do so, as appropriate, during the comment period.
The rule being proposed today has been developed in consultation with,
and takes into consideration suggestions from, public water systems,
environmental groups, public interest groups, the States, and other
interested parties.
III. Discussion of Proposed Rule
A. Purpose and Applicability
Through this proposed rulemaking, 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 proposed 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 one month after
promulgation.
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 shall, among other things, specify procedures to be used by the
Administrator or the State to grant or deny variances. This statutory
language suggests that it was the intent of Congress that States adopt
procedures no less stringent than those identified in this proposed
rule for issuance of small system variances. Therefore, the Agency is
proposing to change 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
proposed rule, and seek EPA approval of such regulations by submitting
a program revision package.
D. Rationale for New Subpart
This proposed rule creates Subpart K, which addresses the issuance
of small system variances. This separate subpart was created to reflect
the rather substantial statutory language in section 1415(e) of the
Act, which 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.
The Agency's decision to establish this separate subpart in the
regulations is intended to provide clear and concise descriptions of
the new regulatory requirements for small public water systems in one
location in the regulations. The alternative of interspersing small
system variance requirements within the existing regulations for
variances could easily become too confusing when trying to identify and
follow small system requirements.
E. Rationale for Format of New Subpart
The Agency has attempted to draft Subpart K of these proposed
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''. This effort to use ``plain English'' is not
just a Federal initiative; over half of the States now have legislative
drafting manuals recommending plain English principles.
F. General Provisions in Proposed Subpart K
Sections 142.301-142.305 of the proposed small system variance
regulations essentially codify the statutory provisions governing who
can apply for, and who can grant, these variances. One of these
provisions (Sec. 142.304), however, requires some explanation.
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 a result, the Agency will not
be listing small system variance technologies for microbial
contaminants, and the proposed rule (Sec. 142.304) prohibits the
primacy agency
[[Page 19442]]
from granting a variance for a microbial contaminant.
Similarly, 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 or allowing any variances for
such contaminants (see Sec. 142.304). With respect to this latter
category, however, the scope of the statutory prohibition is somewhat
ambiguous. The Agency must consider whether Congress intended that the
prohibition apply to a contaminant for which an MCL was established
prior to 1986, even if subsequently revised, or whether the prohibition
only attaches to the pre-1986 regulation itself (and thus would not
apply to any future regulations for a contaminant), or whether the
prohibition attaches to the pre-1986 level at which a contaminant was
regulated (but not to more stringent levels in future regulations). The
statutory language could be amenable to any of the three
interpretations, and while the legislative history for this provision
provides conflicting explanations (cf. Senate Report 104-169 at 55-56
with House Report 104-632 at 39), there is no explanation of the policy
rationale for any particular interpretation.
The Agency surmises that the intent behind this provision is to
prohibit a public water system from obtaining a variance for a
contaminant for which compliance should have been achieved long ago. At
the same time, the Agency does not believe that this rationale applies
where the Agency revises a pre-1986 regulation to make it more
stringent. As a result, the Agency interprets section 1415(e)(6)(A)
prohibition to apply to the level at which any contaminant was
regulated before 1986; therefore, variances are not available for
systems above the pre-1986 level even if subsequently revised. (Note
that several of the pre-1986 levels were interim levels and have
already been 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. The Agency requests comment on this approach and
statutory analysis.
G. Small System Variance Requirements
Sections 142.306-142.310 of the proposed rule establish the
conditions under which the primacy agency can grant small system
variances. The Agency has attempted in the proposed rule to provide
flexibility in the process of applying and reviewing requests for small
system variances. For example, the Agency has not specified any
particular form of a variance application or who (the system or the
State) needs to provide the relevant information; rather, the Agency
has only specified that the information must be sufficient for the
primacy agency to make certain findings and that those findings are
documented in writing. Additional rationale for several of the
provisions is discussed below.
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
proposed 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 proposed rule at
Sec. 142.306(b)(2). 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. Under the Act,
such options include some form of treatment, development of an
alternative source, or management restructuring or consolidation with a
nearby system. States may wish to include a compliance options analysis
as part of their capacity development strategy to address the available
options for noncompliant public water system to return to compliance.
Management changes which could be considered by the State in
performing such a compliance options analysis include financial
management changes, the appointment of a State-certified operator under
the State's Operator Certification program, contractual agreements for
a more efficient and capable public water system based on joint
operation, etc.
The 1996 Amendments to the Safe Drinking Water Act place strong
emphasis on technical, managerial, and financial capacity as integral
components of the implementation strategies of the Act. There is strong
statutory linkage between section 1420 of the Act (the capacity
development provisions), and section 1415 (the variances and exemptions
provisions), and the Agency has attempted to reflect this linkage in
Sec. 142.306(b) of the proposed rule.
Section 1415(e)(7)(A)(ii) of the Act states that today's proposed
rule must include requirements concerning the technical and financial
capability to operate and maintain a small system variance technology.
Therefore, under proposed Sec. 142.306(b)(4), a State or the Agency
must find that a small system has the technical and financial capacity
to operate a variance technology before granting a small system
variance.
However, the Agency recognizes that there may be instances in which
a small system is otherwise eligible for a variance, but lacks the
technical and financial capability to operate the variance technology.
Since enhancing technical and financial capacity of public water
systems will likely be dominant goals in State capacity development
strategies, a State may wish to focus elements of its capacity
development strategy to help systems in such a situation develop the
technical and financial ability to operate a small systems variance
technology.
Furthermore, under section 1420 of the Act, the State could face
the possibility of Drinking Water State Revolving Fund withholding
unless, under the capacity development strategy in section 1420(c) of
the Act, the State develops a strategy to help systems enter and remain
in compliance with National Primary Drinking Water Regulations (NPDWRs)
by enhancing their technical, financial, and managerial capacity to
comply. Additional considerations and conditions related to the
protection of public health are addressed in sections III.G.6 and V.F.
of this preamble.
2. Section 142.306(b)--Documentation of State Considerations in
Reviewing Small System Variances
The proposed 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. Such documentation fulfills many goals.
Documentation of small system variance findings, as required in
Sec. 142.306 of the proposed rule, serves as a written record of
decision which the public can review in preparation for the required
public hearing or in preparation of a petition to the Administrator. In
addition, a summary of the findings and the bases for such findings
should be included in the required public notices associated with the
proposal of such small system variances.
Sufficient documentation of the State's findings regarding a
system's eligibility for a small system variance
[[Page 19443]]
will also be necessary for the Agency's periodic review of State-issued
variances, the Agency's approval of variances issued to systems serving
between 3,300 and 10,000 persons, and the Agency's review of a petition
to object to a variance. Where adequate documentation of findings is
not available, the Agency may have to summarily overturn, reject, or
object to a variance.
Documentation required in the proposed rule must indicate not only
that a certain factor listed in Sec. 142.306 of the proposed
regulations was considered, but must also include the rationale for
decisions by the State regarding each of the required findings, as well
as the underlying facts supporting that decision.
3. Section 142.306(b)(2)--Affordability Criteria
Section 142.306(b)(2) of the proposed rule codifies the statutory
requirement that States undertake a compliance options analysis in
accordance with the State's own affordability criteria.
Section 1415(e)(7)(B) of the 1996 Safe Drinking Water Act, as
amended, requires the Agency to publish, within eighteen months of the
Act's enactment, information to assist the States in formulating
affordability criteria. According to the Act, this information is to be
developed by the Agency in consultation with the States and the Rural
Utilities Service (RUS) of the U.S. Department of Agriculture. States
are to develop affordability criteria to make determinations relative
to compliance options available to small drinking water systems,
including eligibility for small system variances under section 1415 of
the Act, as amended. The Agency published this document on February 6,
1998 and is available by contacting the Safe Drinking Water Hotline at
1-800-426-4791 (request document number 816-R-98-002). The Agency may
use principles in this document to develop affordability criteria for
granting small system variances in those areas in which the State does
not have primary enforcement responsibility under section 1413 of the
Safe Drinking Water Act.
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 regarding the available
variance technologies for each national primary drinking water
regulation for which a variance may be granted. This guidance is
currently in development by the Agency's Office of Groundwater and
Drinking Water and is anticipated to be released by the statutory
deadline. The proposed 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.
For further discussion of adequate protection of human health,
please see section III.G.5 of this preamble. In addition, section V.F.
provides a discussion of health matters related to protection of
children and environmental justice concerns.
5. Section 142.306(b)(5)--Adequate Protection of Public Health
Section 142.306(b)(5)(i-ii) of the proposed 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. 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.
In section 1412(b)(15)(C) of the Act, Congress further provided
that the Administrator must include in the guidance identifying
variance technologies any assumptions supporting her determination that
a listed technology is protective of public health, where such
assumptions concern the public water system to which the technology may
be applied, or its source waters. The Agency believes that Congress
intended this information to be used by States to determine if the
assumptions used by the Administrator in determining that a technology
is protective of public health are applicable to the specific small
system applying for a variance, and define what terms or conditions
will ensure adequate protection of public health. In making a finding
of adequate protection of public health, States need to consider the
elements in the source water that may interfere with the performance of
the technology. Depending on the specific technology being implemented,
these may include the current level of contamination, variation in
levels of contamination, the rate of change in those variations, the
frequency in which the variations occur, and the duration that
contamination remains at elevated levels (days, weeks, months). States
should then use these types of information, as appropriate, to set
site-specific terms and conditions which will adequately protect public
health.
As previously discussed, EPA 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
under general source water conditions and operating and maintenance
procedures. The variance technology guidance under section
1412(b)(15)(C) 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. These
general source water characteristics will include a description of
other
[[Page 19444]]
contaminants that may interfere with treatment (such as sulfate or
iron), pH, hardness, total dissolved solids, and turbidity, among
others. General guidance on treatment modifications that can address
the adverse impacts will also be included. As an example, the guidance
may identify total dissolved solids in the source water as having
potential to foul the membrane in the treatment process, and therefore
may suggest that the membrane be more closely monitored and more
frequently replaced. 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 previous
example, such terms might include how often the membrane should be
monitored and replaced, considering the exact levels of total dissolved
solids in the source water and any other factors that may interfere
with removal.
EPA is requesting comment on whether it would be useful and
appropriate, at some time in the future, 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. Congress clearly left the
responsibility to consider site-specific factors and define appropriate
terms and conditions to the States, and EPA does not wish to diminish
that responsibility. At the same time, the Agency believes 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. EPA is soliciting comment and recommendations on
both the need for and appropriateness of such guidance and on its
substantive content if provided.
In addition to the statutory requirements that the State consider
the quality of the source water and removal efficiencies and useful
life of the technology in its determination of adequate public health
protection, EPA is also considering including a requirement that the
States consider disproportionate impacts and risks to sensitive sub-
populations, including infants and pregnant or nursing women. Although
a leading risk to sensitive subpopulations from drinking water comes
from infectious contaminants, which are specifically excluded by the
Act from eligibility for small system variances, there may be other
contaminants which pose special risks to sensitive subpopulations. In
general, EPA would consider such risks in its national determination
that a variance technology is protective of public health. There may be
instances, however, where site-specific factors would specifically
affect the risk to sensitive subpopulations and should thus be
considered by the State in that light. EPA is requesting comment on the
appropriateness of including in the final rule a requirement that the
State specifically consider impacts on sensitive subpopulations in its
determination of adequate public health protection. Commenters are
encouraged to provide specific examples of contaminants for which site-
specific conditions may result in special risks to sensitive
subpopulations. One alternative to such a requirement would be for EPA
to include in guidance specific factors that may result in special
risks to sensitive subpopulations and suggestions on how to address
such risks. EPA is also soliciting comment on this alternative.
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. A State or the Administrator must clearly
specify enforceable terms and conditions of a small system variance.
The terms and conditions of a small system variance issued under this
subpart must include, at a minimum, proper installation of the
applicable small system variance technology, proper operation and
maintenance of the technology, and monitoring requirements for the
contaminant for which a small system variance is sought as specified in
40 CFR Part 141. If a contaminant level is above the maximum
contaminant level, the public water system is required to monitor, at
least, quarterly. The State may require more frequent monitoring. In
addition, the State must include any other terms or conditions that it
determines that are necessary to ensure adequate protection of public
health.
The small system variance must also include a schedule for the
public water system to comply with the terms and conditions of the
small system variance. At a minimum, the schedule should include
increments of progress and quarterly reporting to the State or
Administrator of the public water system's compliance with the terms
and conditions of the small system variance. This quarterly reporting
will enable the primacy agency to adequately track compliance of the
schedule. In addition, States are required under 40 CFR Part
142.15(a)(1) to report on a quarterly basis to EPA any violations of
the terms and conditions of a small system variance.
The schedule must also notify the public water system when the
State or the Administrator will review the small system variance under
Sec. 142.307(d). The intent of this provision is to address the
concerns of public water systems that they be provided adequate notice
of when the State or Administrator will review the variance.
7. Section 142.307(c)(4)--Compliance Period for Small System Variances
Section 142.307(c)(4) of the proposed rule codifies the statutory
language regarding the duration of variances. In accordance with
section 1415(e)(4), Sec. 142.307(c)(4) of the proposed rule states that
the terms and conditions of a small system variance must require
compliance with the conditions of the variance as soon as practicable
but not later than three years after the date on which the variance is
granted. It is the Agency's expectation that this three-year period
will usually be sufficient.
However, section 1415(e)(4) of the Act also states that the
Administrator or the State may allow up to two additional years under
two situations: (1) Where the Administrator or the primacy State
determines that additional time is necessary for capital improvements
to comply with a variance technology, secure an alternative source of
water, or restructure or consolidate, or (2) to allow for financial
assistance provided pursuant to section 1452 of the Act or any other
Federal or State program.
The Agency interprets section 1415(e)(4) to allow the primacy
agency to grant the two additional years at the time of issuance, upon
a determination by the primacy State or the Administrator that those
two additional years are necessary to ensure compliance. 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 1996 Amendments to the Safe Drinking Water Act
provide for many opportunities for the public to be involved in
decisions that affect the delivery and treatment of drinking water.
Today's proposed rule provides opportunities for the public to become
involved in the decision-making process of whether a variance or
exemption
[[Page 19445]]
should be granted. The Agency's intent in the proposed regulations is
to provide sufficient opportunity for meaningful public participation
in the variance and exemption process, while, at the same time, keeping
the public notification requirements for small systems and States
manageable.
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 proposed 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 objecting 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 proposed
regulations for granting a small system variance is as follows:
(1) A small public water system which is in noncompliance with an
eligible maximum contaminant level or treatment technique 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 proposed regulations, and upon finding and documenting the
required information under Section 142.307 of the proposed rule, the
primacy agency establishes the terms and conditions of the proposed
small system variance;
(4) The primacy agency prepares a draft of the small system
variance including the terms and conditions of the same;
(5) The primacy agency provides notice to consumers of the system
of its 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;
(6) The primacy agency also proposes the variance by publishing a
notice in the State equivalent of the Federal Register, or, in the case
of the Administrator, in the Federal Register;
(7) Either before, or within 15 days after publication of this
notice, 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 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 comment
received prior to this submission, to EPA for review and approval of
the proposed variance;
(9) Within thirty days of the proposal date 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 ninety days of the proposal date.
EPA is proposing that the State may 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. Under this approach, the State would not be required to issue
an additional notification directly to consumers on the actual date of
proposal. Such notice must be issued at least 15 days before the actual
proposal date and at least 30 days before the public meeting. For
purposes of the consumer petition process, the variance is proposed on
the actual proposal date (generally the date of publication in the
State or Federal Register) as opposed to the date that the State issues
one or more public notices.
In summary, the proposed regulation requires a State to provide at
least one public notice directly to the system's consumers (in addition
to publishing the proposed variance in the State or Federal Register);
to fulfill the requirement of notifying the public of the public
hearing and proposal of the small system variance. This approach
considers the burden on the State and system seeking the variance of
providing more than one such notice. However, the Administrator
encourages the State and small systems to engage the public in the
development and issuance of the small system variance early in the
process.
The Agency also requests comments on an alternative approach to the
State notification requirements included in the proposed regulatory
language. Under this approach, the Agency would require that the State
provide two distinct public notices directly to water system consumers
during the small system variance process, in addition to publishing the
proposed variance in the State or Federal Register. This proposal would
require that the State provide public notice (1) announcing the
required public meeting at least 30 days before the meeting and (2) at
the time a State proposes to issue a small system variance. In
addition, the State would be required to hold the public meeting before
the State proposes the small system variance. Before holding a public
meeting, the State or the Administrator would need to make public a
draft of the proposed small system variance to ensure that the public
is adequately informed of the terms and conditions likely to be in the
proposed small system variance.
The Agency requests comments on whether the Agency should require
two separate notices by the State to water system consumers (in
addition to publication of the proposed variance in the State or
Federal Register), one announcing the public meeting and a second on
proposal of the small system variance.
Although the alternative approach may increase the State burden by
requiring two different notices, adopting this approach in the
regulation may maximize public notification and participation in the
issuance of a small system variance. In addition, by requiring that the
public meeting be held before proposing the small system variance, a
person served by the system would be guaranteed at least 30 days
following the public meeting before expiration of the deadline for
filing a petition. Under the proposed approach, a person served by the
system could have as little as 15 days following the public meeting to
file a petition, though they would still be guaranteed at least 45 days
from the time they first received notice of the proposed variance
(along will all of the required supporting information) to file such a
petition. In selecting a final approach, the Agency will consider all
comments and attempt to balance the burden to the State and water
system with the need to provide adequate opportunity for public
participation, including use of the petition process.
b. Notice by public water systems. The Agency is also requesting
comment on adding an additional public notification requirement which
is currently not a part of the proposed regulatory language. Under this
approach, the Agency would require the public water system to provide
notice to the persons served by the system that the system is applying
for a small system variance.
[[Page 19446]]
The intent of this would be to address some stakeholders' concerns that
public notification should be provided early in the small system
variance process. This alternative would require the system applying
for a small system variance to notify the public at the time it applies
for a small system variance. The notice would be required to be in the
same manner as required for the State in notifying persons served by
the system that a variance will be proposed as prescribed, in
Secs. 142.308(a) through (d) of the proposed regulation (see III.G.8.d
below). Consistent with the underlying theme of today's proposed
regulations, States would be encouraged to provide assistance to small
systems to ensure that the public notification requirements are
satisfied.
The Agency requests public comment on whether this additional
notification should be a part of this regulation. The Agency recognizes
that this would place an additional burden on the small public water
system. However, such notification may further the goal of affording
early public participation in the development of the small system
variance, before the State has conducted its initial compliance options
analysis and considered appropriate terms and conditions to ensure
adequate protection of public health. The information provided with
such a notice would necessarily be less complete than that provided by
the State after reviewing the application. The Agency also requests
comments on what information should be required in such a notice and
whether there is concern over the first notification to water system
consumers being one that would necessarily lack complete information.
c. Public hearing requirement. Section 142.309 of the proposed
regulations addresses the requirements for a public hearing on a draft
proposed small system variance and notice of the public hearing.
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
hearing 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), 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 hearing
(and provide the required supporting information) at least 30 days
before the date of the meeting.
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. The notice requirements in the proposed
regulations are intended to provide adequate notice for persons who may
wish to petition the Administrator to ask the Agency to object to the
variance.
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 provided
to the Agency during the stakeholder process, the Agency is proposing
to require individual notice only to billing 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. Today's proposed rule
would therefore require that a State provide some form of notice to all
persons served by the system on a regular basis.
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 proposal implements this statutory requirement. In this
provision, the Agency is requiring, along with other information,
specific health effects language to be used by States in the notices.
The Agency is proposing to require use of the health effects language
developed for the recently proposed consumer confidence report rules,
63 Federal Register 7625, 7631-7632 (Feb. 13, 1998). 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. If the language in the consumer confidence
report rules is revised after public comment, the Agency intends to use
the revised language for this rule.
The Agency is also implementing stakeholders' concerns that notices
not contain highly technical information by requiring the notices to
provide a brief non-technical summary of the variance process and
compliance options considered by the system and the primacy agency. In
addition, all proposed notices would be required to meet the
multilingual requirement in Sec. 142.308(c)(7) of the proposed
regulations, if appropriate. This requirement specifies that in
communities with a large portion of non-English-speaking residents,
information in the appropriate language regarding the content and
importance of the notice should be included. The multilingual
requirement is consistent with the Agency's environmental justice
policy.
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 30 days after a State
proposes to issue a small system variance. This statutory provision is
implemented in Sec. 142.310 of the proposed regulations. Consumer
petitions should be mailed to the EPA Regional Administrator. The
proposed rule requires that the State or the Administrator include, in
the public notice of the proposed small system variance, information to
consumers regarding the petition process and the address of the EPA
Regional Administrator for their State.
H. 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
proposed 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 variance is not in compliance with the
requirements of 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.
[[Page 19447]]
In addition, Sec. 142.311(a) of the proposed 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.
Section 1415(e)(10) of the Act addresses objections to small system
variances. Pursuant to section 1415(e)(10)(A) of the Act,
Sec. 142.311(b) of the proposed rule states that the Administrator may
review and object to any variance proposed to be granted by the State,
if such objection is communicated to the State not later than 90 days
after the State proposes to grant the variance. Again, the Agency
expects that such objections would be based upon a determination that
the variance is not in compliance with the requirements of the Act and
the rule, including a finding consistent with the State's affordability
criteria that the system cannot afford to comply. In accordance with
section 1415(e)(10)(A) of the Act, the notification to the State must
include the basis for the objection and propose a modification to the
variance to resolve the concerns of the Administrator. The State shall
make the recommended modification or respond in writing to each
objection. If the State issues the 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 and the rule.
I. 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 proposed rule requires the Administrator to
periodically review the primacy State's variance program to determine
whether variances granted by the State comply with the requirements of
the Act. The Administrator may determine that the variances granted by
the primacy State are not in compliance with the State's affordability
criteria and the requirements of the Act. Pursuant to section
1415(e)(8)(B) of the Act, Sec. 142.313(b) of the proposed rule requires
the Administrator to notify the State in writing of the deficiencies
and to make public the determination.
J. 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.
The Agency is seeking comment on whether to add language to
Sec. 142.20 of the proposed regulations that would require any variance
issued by a State pursuant to section 1415(a) of the Safe Drinking
Water Act to prescribe a schedule that would require a public water
system to install technology, which the Administrator finds available,
within three years of the issuance of the variance. In addition, the
regulations could be modified to allow the State or Administrator to
grant an additional two years to complete necessary capital
improvements to achieve compliance or to obtain financial assistance
provided under section 1452 of the Safe Drinking Water Act or any other
Federal or State program.
The Agency recognizes that under a general variance, the State must
prescribe a schedule which requires compliance with the conditions of
the variance as expeditiously as possible (as determined by the State)
which may be less than three years for a given public water system.
Under this proposal, a State would also have the flexibility to require
compliance under a general variance within a possible five-year time
period.
This proposal is based upon the rationale that because sections
1415(a) and 1415(e) of the Act require the installation of specific
technology as specified by the Administrator, it is reasonable to
require a system to install the technology specified through section
1415(a) within the same time periods as required for section 1415(e).
On the other hand, Congress did not choose to impose a time limit on
general variances, further differentiating them from small system
variances. Therefore, the option of imposing such a time limit may not
be appropriate for general variances. The Agency requests public
comment on whether the final rule should specify compliance time
periods for general variances issued under section 1415(a) of the Safe
Drinking Water Act, with such time periods matching those specified for
small system variances issued under section 1415(e).
K. 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. However, 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.
The Agency firmly believes that, at the conclusion of the
established compliance schedule, a public water system receiving an
exemption for a given contaminant should come into full compliance with
the applicable national drinking water regulation for which the
exemption was granted, wherever possible. However, during the
stakeholders process, the Agency received comments indicating that the
regulations should implement the exemption provisions of the Act to
allow, under certain conditions, 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.
Today, the Agency is considering three alternatives to address
whether a small system variance may be issued after an exemption. The
first approach would prohibit the issuance of a small system variance
after an exemption. Under this approach, if a public water system
cannot achieve full compliance with national primary drinking water
regulations at the end of the exemption period, the public water system
would be subject to an enforcement action by which failure to comply
would be remedied. The second approach would allow a State or the
Administrator to issue a small system variance after an exemption for
the same contaminant, but only under specific conditions. For example,
the rule might require that before a small system variance is issued to
a system that has already received an exemption, the primacy agency
must make a determination whether the system was taking all practicable
steps to meet the requirements of the established compliance schedule
under the exemption. Under the third approach, due to the variety of
circumstances under which the issuance of a small system variance after
an exemption could be appropriate, the final rule would allow such a
variance but leave the decision to the implementing agency regarding
which such circumstances merit the issuance of a small system variance
after an exemption for the same contaminant. The Agency requests public
comment on which regulatory approach is most appropriate.
[[Page 19448]]
L. State Revolving Fund Linkage to Exemptions
Strong statutory linkage exists between the exemptions provisions
in section 1416 of the Safe Drinking Water Act and the State Revolving
Fund provisions of section 1452 of the Act. Today's proposed rule
attempts to reflect that linkage. Under section 1452 of the Act, the
State may provide at its discretion additional subsidization to a
recipient of State Revolving Fund assistance for a project serving a
disadvantaged community according to the State's affordability criteria
for drinking water. Under section 1416(a) of the Act, States are
directed to consider whether a system serves such a disadvantaged
community in determining whether compelling economic factors prevent
the system from complying with an MCL or treatment technique, which is
one of the eligibility requirements for receiving an exemption. To
implement this provision and reflect the linkage existing in the Act,
today's proposed regulation, in Secs. 142.20 and 142.50, requires that
the primacy agency consider whether the public water system serves a
disadvantaged community, pursuant to section 1452(d) of the Act.
The State Revolving Loan Fund program plays a prominent role in the
consideration of whether to issue exemptions. Today's proposed
regulation requires the State to consider whether State Revolving Loan
Fund assistance is available to the public water system to assist it in
achieving compliance with the Act. That consideration should include an
assessment of the public water system's technical, financial, and
managerial capacity, and whether assistance can help bring the system
into compliance with the Act. These two provisions, the State Revolving
Fund provisions and the exemptions provisions, can be used together to
complete two important tasks: (1) ensure that State Revolving Loan Fund
assistance is targeted towards 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 conjunction with an exemption in a way that
will produce full compliance with the Act within the compliance
schedule established by the State.
M. 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
Secs. 142.20(b)(2) and 142.56 of the proposed 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
progress and the State's subsequent determination that the small system
and is taking all practicable steps to meet the requirements of the
Act.
The Agency interprets the use of the word ``renewal'' by Congress
to indicate that additional two-year periods may not be granted ``up-
front'' to the small system at the time of initial issuance of the
exemption. Review by the primacy agency is necessary in this renewal
process to ensure that the system is taking all practicable steps to
meet the requirements of the Act. However, it is not anticipated that
the review process to renew an exemption will be as complex as the
initial determination process, including a compliance options analysis,
performed by the primacy State or the Administrator prior to granting
the exemption. Rather, the State should review the progress of the
small system to determine if the system is taking all practicable steps
to meet the compliance schedule. Even though not required by section
1416 of the Act, the primacy State may wish to consider the
incorporation of public participation into the review process of an
exemption. If the State determines that a renewal would not be
appropriate under the Act or regulations, the public water system must
comply with applicable national primary drinking water regulations at
the end of the exemption period.
The Agency requests comment on the above approach and on the level
of effort required by the primacy agency for review and issuance of
renewals of exemptions. In addition, the Agency requests comment on
whether the Agency should consider allowing the extensions to be
incorporated in the initial compliance schedule.
IV. Cost of Rule
The purpose of this rule is to allow systems, especially those
serving under 10,000 people, to adopt affordable technologies that
improve the quality of their water and move them closer to compliance
with national drinking water standards. By relieving these systems of
the obligation to achieve full compliance with applicable standards
when such compliance is not affordable, while maintaining public health
protection, the rule has the potential to generate significant cost
savings. However, since the vast majority of systems currently are
already in compliance with existing standards, the Agency expects the
new variance and exemption provisions to be used primarily by systems
unable to achieve compliance (or which require additional time to
achieve compliance) with future standards. Because the Agency does not
yet know what these new standards will require or what variance
technologies will be approved, it is not possible to quantify the
potential cost savings of the rule with respect to future standards.
Rather, at the time that new standards are promulgated, the Agency will
factor the availability of variances and exemptions under appropriate
conditions into the cost estimates for these standards.
The Agency is currently working on identifying variance
technologies for existing standards. Once these technologies have been
identified and preliminarily financially analyzed, it may be possible
for the Agency to estimate the potential cost savings from variances
for these existing standards. However, the analysis of these
technologies is not far enough along for the Agency to provide an
estimate of these cost savings with the current proposal. In addition
to the savings associated with adopting affordable technologies,
however, the Agency anticipates that systems (and States) will also
realize savings associated with a reduction in enforcement actions (and
[[Page 19449]]
associated judicial proceedings) for systems that are not able to
comply with existing standards but will now have greater access to
variances and exemptions. The Agency has therefore performed an
illustrative analysis of the costs to systems of applying for variances
and exemptions and the cost to States of granting them, relative to the
savings from reduced enforcement actions. This analysis focused on two
sets of existing standards, those contained in the Lead and Copper
Rule, and those contained in the Phase II/V Rule.
Based upon this economic impact analysis (EIA), public water
systems would realize net economic benefits as a result of today's
proposed 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 proposed 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.
The Agency performed an economic impact analysis of today's
proposed rule to examine the economic costs and benefits of this rule
on the Agency, State Drinking Water programs, and public water systems
over a nine-year period. A nine-year period was chosen because systems
serving fewer than 3,300 persons can operate for a maximum of nine
years under an exemption, if they receive all available extensions.
Small system variances, however, are available for the useful life of
the variance technology, which can depend on various technical and
financial factors. Thus, nine years was chosen as an appropriate time
frame in which to examine the costs incurred by a variance and/or
exemption program.
The Agency's economic analysis for the variance and exemption rule
include variables such as administrative burden on States and the
Agency, as well as costs on public water systems of applying and
providing notice of application under the proposed rule. Costs to the
Agency and States specifically include review of variance and exemption
applications, setting terms and conditions of small system variances,
and setting and enforcing milestones within the exemption period for a
system. Some administrative costs, such as those associated with
adopting new regulations or developing new criteria, were not included
in the analysis. Estimated benefits include administrative costs
associated with noncompliance avoided for States and the Agency, as
well as litigation, judicial, and other process costs avoided by public
water systems and regulatory agencies as a result of having variance
and exemption programs in place. These costs avoided are not specific
to any rule.
For the purposes of the economic impact analysis, the Agency
selected two example regulations for which a system may apply for
either a small systems variance or exemption. The Safe Drinking Water
Act states in section 1416(b)(2)(A) that exemptions require compliance
as soon as practicable but not later than 3 years after the otherwise
applicable compliance date established for a given contaminant. Because
no SDWA rules have been promulgated in the past three years, estimating
the costs of implementing an exemption program was somewhat
problematic, i.e., there are currently no national primary drinking
water regulations for which exemptions can be currently granted.
As an alternative, the Agency used the Lead and Copper Rule (last
promulgated in 1995) as an example so that the Agency could estimate
the process costs of implementing an exemption on all affected
entities. The Lead and Copper Rule was chosen because over 68,093
public water systems (approximately 38% of all public water systems)
are subject to that rule, which provides a practical upper bound on the
potential costs associated with processing and issuing exemptions for a
rule. Further, the Agency has access to Lead and Copper Rule compliance
data for those 68,093 public water systems.
The Agency also selected the Phase II/V regulation (inorganic
contaminants) as an example of a pool of maximum contaminants levels
for which variances under sections 1415(a) and 1415(e) may be granted.
This regulation was selected because, for the purpose of issuing small
system variances under section 1415(e), variance technologies are
likely to be designated by the Agency for some of the maximum
contaminant levels under this regulation. This assumption is based on
preliminary analyses performed in preparing a small systems variance
technology list under section 1412(b)(15) of the Safe Drinking Act.
Also, Phase II/V addresses approximately 25 contaminants, some or all
which may also be eligible for source water variances under section
1415(a) of the Act. Therefore, Phase II/V helps the Agency obtain a
practical upper bound on the potential costs associated with processing
and issuing variances for a NPDWR.
In using the Phase II/V Regulation and the Lead and Copper Rule as
examples, the Agency does not make any indication as to whether these
rules will be eligible for small system variances. The Administrator
has not yet finally determined the contaminants for which small system
variance technologies will be designated.
The table below provides, by system size as number of persons
served, the number of public water systems (PWSs) subject to the Lead
and Copper Rule and the Phase II/V Rule.
------------------------------------------------------------------------
All PWS
subject All PWS
to the subject
System size (in persons served) lead and to the
copper phase II/
rule V rule
------------------------------------------------------------------------
25-500............................................ 51,191 48,100
501-3,300......................................... 16,902 14,126
Total < 3,301..................................... 68,093 62,226
3,301-10,000...................................... 4,323 3,410
Total < 10,000.................................... 72,416 65,636
> 10,000.......................................... 3,529 2,774
---------------------
Total......................................... 75,945 68,410
------------------------------------------------------------------------
For both regulations, the Agency used compliance data to estimate
the number of systems that may be eligible for a variance under
sections 1415(a) or 1415(e) of the Act, or exemptions. The violation
rates used in the economic impact analysis are identified in the table
below. Violation data for the Lead and Copper Rule was taken from the
Safe Drinking Water Information System database; violation rates for
the Phase II/V Rule are from the Public Water Supply Supervision
program information collection rule.
------------------------------------------------------------------------
Percentage of all PWS
potentially eligible
for variances/
exemptions
-----------------------
Lead and
copper Phase II/V
(percent) (percent)
------------------------------------------------------------------------
Treatment Technique or Maximum Contaminant Level
(annual violation rate)........................ 0.50 0.50
Treatment Technique or Maximum Contaminant Level
(nine-year violation rate)..................... 4.50 2.00
------------------------------------------------------------------------
The number of potentially eligible systems (i.e., systems in
violation) was then used to estimate processing costs incurred by
implementing a variance
[[Page 19450]]
and/or exemption program to all affected entities, summed for both
rules. As stated previously, these costs include administrative burden
to States and the Agency, as well as the public water systems' costs of
applying for variances and exemptions. These costs were then compared
to the economic benefits to public water systems, States, and the
Agency of avoiding litigation and other administrative costs associated
with noncompliance, summed for both rules. The net results are shown
below, and costs are shown in parentheses.
----------------------------------------------------------------------------------------------------------------
State drinking
EPA water programs PWS All entities
----------------------------------------------------------------------------------------------------------------
Costs........................................... $241,821 $5,041,694 $348,716 ..............
Benefits........................................ 0 2,863,321 3,342,616 ..............
Net annualized economic costs and benefits...... (241,821) (2,178,373) 2,993,900 $573,706
Net present value of economic costs and benefits .............. .............. .............. 4,057,739
----------------------------------------------------------------------------------------------------------------
The Agency also examined the distribution of net economic benefits
within differing size categories of public water systems serving 10,000
or fewer persons. As shown below, systems serving 25-500 persons will
show the greatest net benefit from the issuance of variance and
exemptions according to the model assumptions.
------------------------------------------------------------------------
Net annualized
System size (persons served) economic
benefits
------------------------------------------------------------------------
25-500.................................................. $2,060,939
501-3,300............................................... 642,323
3,301-10,000............................................ 149,782
------------------------------------------------------------------------
According to the economic impact analysis and the above tables, the
variance and exemption rule is not considered to have a ``significant
impact'' as defined under the Unfunded Mandates Reform Act, nor would
it pose an adverse impact on a substantial number of small entities, as
discussed in section V.D. of the preamble to today's proposed rule.
Instead, public water systems would show a net economic benefit under
today's proposed 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.
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 review. Substantive changes made in
response to OMB suggestions or recommendations will be 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 proposed
regulations on small entities. The Agency assesses the impact of the
proposed rule on small entities and considers regulatory alternatives
if a rule has a significant economic impact on a substantial number of
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 those 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 proposed 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 today's
preamble for a more detailed discussion of the economic costs and
benefits of today's proposed rule.
C. Paperwork Reduction Act
The information collection requirements in this proposed rule are
currently being prepared and will be submitted for approval to the
Office of Management and Budget (OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR No.
270.39) document will be prepared by the Agency to amend the current
Public Water System Supervision Program ICR (OMB control number 2040-
0090). A copy of the ICR is available from Sandy Farmer, Regulatory
Information Division, Office of Policy, Planning, and Evaluation, U.S.
Environmental Protection Agency (Mailcode: 2137), 401 M St., S.W.,
Washington, D.C., 20460, or by calling (202) 260-2740. Information
requirements created by this regulation 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
[[Page 19451]]
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.
Based upon the analysis of the two rules discussed above, total
public burden for this collection of information is estimated as
128,178 hours annually. The Agency notes however that the rule is
estimated to provide a benefit of 117,414 annual hours of burden
reduction by reducing enforcement actions against public water systems
unable to comply fully with the maximum contaminant level or treatment
technique requirements of the National Primary Drinking Water
Regulations. Because this type of burden is not generally counted when
developing burden estimates for these regulations, it is not netted out
of the burden estimated for the current rule. 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.
Despite the increased burden hours, the rule is expected to provide
a net economic benefit to systems choosing to apply for a variance or
exemption, as discussed in section IV. This benefit includes avoided
litigation and judicial costs, as well as the savings associated with
the implementation of affordable technologies.
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.
Comments are requested on the Agency's need for the required
information, the accuracy of the provided burden estimates, and any
suggested methods for minimizing respondent burden, including through
the use of automated collection techniques. Send comments on the ICR
June 19, 1998 to: Director, OPPE Regulatory Information Division, U.S.
Environmental Protection Agency (Mailcode: 2137), 401 M St., S.W.,
Washington, D.C., 20460 and to the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th St., N.W.,
Washington, D.C., 20503, Attn: Desk Office for EPA Office of Water. The
final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
D. Unfunded Mandates Reform Act and Executive Order 12875
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 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.
This is because the rule will apply only to primacy States or Tribes.
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
Executive Order 12875, ``Enhancing Intergovernmental
Partnerships,'' October 26, 1995, requires the Agency to consult with
State, tribal, and local entities in the development of rules that will
affect them, and to document for OMB review the issues raised and how
the issues were addressed. As described in section II of the
Supplementary Information above, 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.
[[Page 19452]]
F. Protection of Children and Environmental Justice
Under the Executive Order entitled ``Protection of Children from
Environmental Health Risks and Safety Risk,'' dated April 21, 1997, the
Agency must ensure that its policies, programs, activities, and
standards address environmental and safety risks to children. Every
regulatory action submitted to OMB for review under Executive Order
12866 must include information that evaluates the environmental health
and safety effects of the planned regulation on children and explains
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
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 proposed 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 proposed 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 may have unprotected source waters or is 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 proposed 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 proposed rule requires that the State find
that the terms and conditions of a small system variance ensure
``adequate protection of public 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 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 as proposed today 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, Sec. 142.308(c)(7) of the proposed
rule requires that, in communities with a large portion of non-English
speaking persons, notices provided to the public must include
information in the appropriate language regarding the content and
importance of the notice.
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 and procurement 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
proposed 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. A commenter who disagrees
with this conclusion should indicate how the rule is subject to the
Act, and identify any potentially applicable voluntary consensus
standards.
VI. Request for Public Comments
The Agency seeks public comment on this proposed rule. In
particular, several sections of the preamble describe alternative
approaches under consideration by the Agency or specifically request
comment. The topic areas addressed in these particular sections
include: which contaminants should be eligible for small system
variances; the usefulness and appropriateness of additional guidance on
site-specific determination of adequate public health protection; the
appropriateness of requiring States to explicitly consider impacts on
sensitive subpopulations, or alternatively of the Agency providing
guidance on impacts to such subpopulations; the number and timing of
public notices that must be provided prior to granting a small system
variance; the content of required health effects language in such
notices; whether the Agency should promulgate a specific time limit for
compliance with the terms of general variances; whether small system
variances should be permitted for systems that are unable to comply
within the terms of an exemption; whether exemption renewals should be
allowed in advance; and the reporting and recordkeeping requirements of
the rule and associated burden. Comments are also welcome on any other
aspect of the proposed rule and supporting documentation.
[[Page 19453]]
Please submit an original and three copies of your comments and
enclosures (including references). To facilitate Agency review and
response to comments, the Agency would prefer that commenters cite,
where possible, the specific paragraph(s) or section(s) in the notice
or supporting documents to which each comment refers. Commenters should
use a separate paragraph for each issue discussed. Commenters who want
the Agency to acknowledge receipt of their comments should enclose a
self-addressed, stamped envelope. No facsimiles (faxes) will be
accepted.
Written comments must be received by midnight May 20, 1998. All
written comments should be submitted to: W-97-26 Comment Clerk, Water
Docket (Mailcode MC4101), Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C., 20460.
Comments may also be submitted electronically to ow-
docket@epa.mail.epa.gov. Electronic comments must be identified by the
docket number W-97-26. Electronic comments must be submitted as an
ASCII file avoiding the use of special characters and form of
encryption.
The record for this rulemaking has been established under docket
number W-97-26, and includes supporting documentation as well as
printed, paper versions of electronic comments.
List of Subjects in 40 CFR Part 142
Environmental protection, Administrative practice and procedures,
Chemical, Indian-lands, Radiation protection, Reporting and
recordkeeping requirements, Water supply.
Dated: April 14, 1998.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 142 is
proposed to be amended as follows:
PART 142--[AMENDED]
1. 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.
2. 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
* * * * *
3. Section 142.20 is revised including the section heading 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. A State must document
all findings that are required 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.
(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, including the following:
(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 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. A State must document
its findings in granting an extension under this paragraph.
4. The heading for Subpart E is revised to read as follows:
Subpart E--Variances Issued by the Administrator Under Section
1415(a) of the Act
5. 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
[[Page 19454]]
Administrator that indicates that alternative sources of water are not
reasonably available to the public water system.
* * * * *
Subpart F--[Amended]
6. 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)(A), 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 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.
7. 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
* * * * *
8. 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].
9. 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.
10. 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.
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
[[Page 19455]]
Subpart B for public water systems under the State's jurisdiction; or
(b) The Administrator, for any other public water systems.
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.
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;
(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
ensure that accurate and correct information is available for 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 and 142.304;
(2) The public water system cannot afford to comply, in accordance
with the affordability criteria established by the Administrator or the
State, 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:
[[Page 19456]]
(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 Administrator must determine whether continued adherence
to the small system variance conditions is in the public interest.
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 or the Administrator must
provide notice to all consumers of the public water system. This notice
identified in paragraph (a)(1) of this section must include the
information listed in paragraph (c) of this section. The notice
identified in paragraph (a)(2) of this section shall include the
information identified in paragraph (d) of this section. Notice must be
provided to such consumers by:
(1) Direct mail to billed customers; 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, 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 B 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
compliance options considered by the public water system and 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 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 portion of non-English speaking
residents, 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) 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.
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 subpart.
[[Page 19457]]
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 subpart.
(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 the Act, this subpart 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 subpart 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. 98-10393 Filed 4-17-98; 8:45 am]
BILLING CODE 6560-50-P