Frequently Asked Questions about Section 1441 of the Safe Drinking Water Act
What should a Public Water System (PWS) or Publicly Owned Treatment Works (POTW) do if they experience a disruption in the supply of a chemical?
PWSs and POTWs should first work with their current chemical suppliers and identify and contact other potential suppliers in their area, as needed. They should also consult their primacy agency or permitting authority as there may be options during emergency situations for addressing the shortage while maintaining compliance. PWSs and POTWs may also contact neighboring utilities or local mutual aid networks such as Water and Wastewater Agency Response Networks for potential supply options.
What is the threshold for applying for a certification of need?
EPA determines each application on a case-by-case basis. PWSs and POTWs should consider applying at their earliest opportunity if it appears that a chemical may not be available in the quantity needed for treatment in the future.
Can a price increase or surcharge serve as a basis for a certification of need?
No, the Safe Drinking Water Act (SDWA) Section 1441 is not a mechanism to adjudicate pricing disputes between customers and suppliers. Additionally, several states have anti-gouging laws that may provide a means of addressing unfair pricing.
Can a suspected antitrust violation serve as a basis for a certification of need?
No, SDWA Section 1441 is not a mechanism to adjudicate suspected antitrust violations. The Federal Trade Commission (FTC) has a process for the public and businesses to report a suspected antitrust violation. Please consult the FTC’s Guide to the Antitrust Laws, which may answer general questions about the antitrust laws and contains Frequently Asked Questions on a number of topics. If you would like to report a suspected antitrust violation, please visit the FTC website or call (202) 326-3300.
How long does it take to execute a SDWA Section 1441 order?
EPA will expedite the processing of the application if the information provided by the utility indicates the need for urgency. The time to execute a SDWA Section 1441 order will depend on completeness of the application; the requirement to issue a Federal Register; and responsiveness of the utility, state, primacy agency and vendors in response to the application.
What utilities are included in the provision?
SDWA Section 1441 covers any entity that treats water “in any public water system or in any public treatment works.”
How are primacy agencies or permitting authorities involved in this process?
The statute does not define a specific role for states in the process, but EPA intends to coordinate with states.
Are any chemical producers or manufacturers exempt from this provision?
Yes. The Department of Commerce (DOC) cannot issue orders to “any manufacturer, producer, or processor of such chemical or substance who manufactures, produces, or processes (as the case may be) such chemical or substance solely for its own use.” SDWA §1441(c)(1).
Can SDWA Section 1441 orders be issued to foreign persons or companies?
No. SDWA Section 1441 only applies to domestic manufacturers, producers, or processors.
What factors would the DOC consider in issuing orders under SDWA Section 1441?
The DOC would consider:
equitably apportioning orders, “as far as practicable, among all manufacturers, producers, and processors of such chemical or substance” and among all distributors and repackagers of such chemical or substance; SDWA §1441(c)(2);
“the geographical relationships and established commercial relationships between such manufacturers, producers, processors, distributors, and repackagers and the persons for whom the orders are issued;” SDWA §1441(c)(2)(A);
“in the case of orders to be issued to producers of chlorine, the (i) amount of chlorine historically supplied by each such producer to treat water in public water systems and public treatment works, and (ii) share of each such producer of the total annual production of chlorine in the United States;” SDWA §1441(c)(2)(B);
such other factors as determined “are relevant to the apportionment of orders”. SDWA §1441(c)(2)(C).
What does “person” mean in the context of SDWA Section 1441?
“The term ‘person’ means an individual, corporation, company, association, partnership, State, municipality, or Federal agency (and includes officers, employees, and agents of any corporation, company, association, State, municipality, or Federal agency).” 42 USC § 300f(12).
Where can I find a copy of SDWA Section 1441?
SDWA Section 1441 is on page 83 of the Title XIV of The Public Health Service Act: Safety of Public Water Systems (SDWA).
Who should I contact if I have questions about this process?
You may send an email to WSD-Outreach@epa.gov.