[Title 40 CFR 142]
[Code of Federal Regulations (annual edition) - July 1, 1996 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)]
[Part 142 - NATIONAL PRIMARY DRINKING WATER REGULATIONS IMPLEMENTATION]
[From the U.S. Government Publishing Office]
40
PROTECTION OF ENVIRONMENT
10
1996-07-01
1996-07-01
false
NATIONAL PRIMARY DRINKING WATER REGULATIONS IMPLEMENTATION
142
PART 142
PROTECTION OF ENVIRONMENT
ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 142--NATIONAL PRIMARY DRINKING WATER REGULATIONS IMPLEMENTATION--Table of Contents
Subpart A--General Provisions
Sec.
142.1 Applicability.
142.2 Definitions.
142.3 Scope.
142.4 State and local authority.
Subpart B--Primary Enforcement Responsibility
142.10 Requirements for a determination of primary enforcement
responsibility.
142.11 Initial determination of primary enforcement responsibility.
142.12 Revision of State programs.
142.13 Public hearing.
142.14 Records kept by States.
142.15 Reports by States.
142.16 Special primacy requirements.
142.17 Review of State programs and procedures for withdrawal of
approved primacy programs.
142.18 EPA review of State monitoring determinations.
142.19 EPA review of State implementation of national primary drinking
water regulations for lead and copper.
[[Page 430]]
Subpart C--Review of State-Issued Variances and Exemptions
142.20 State-issued variances and exemptions.
142.21 State consideration of a variance or exemption request.
142.22 Review of State variances, exemptions and schedules.
142.23 Notice to State.
142.24 Administrator's rescission.
Subpart D--Federal Enforcement
142.30 Failure by State to assure enforcement.
142.31 [Reserved]
142.32 Petition for public hearing.
142.33 Public hearing.
142.34 Entry and inspection of public water systems.
Subpart E--Variances Issued by the Administrator
142.40 Requirements for a variance.
142.41 Variance request.
142.42 Consideration of a variance request.
142.43 Disposition of a variance request.
142.44 Public hearings on variances and schedules.
142.45 Action after hearing.
142.46 Alternative treatment techniques.
Subpart F--Exemptions Issued by the Administrator
142.50 Requirements for an exemption.
142.51 Exemption request.
142.52 Consideration of an exemption request.
142.53 Disposition of an exemption request.
142.54 Public hearings on exemption schedules.
142.55 Final schedule.
142.56 Extension of date for compliance.
142.57 Bottled water, point-of-use, and point-of-entry devices.
Subpart G--Identification of Best Technology, Treatment Techniques or
Other Means Generally Available
142.60 Variances from the maximum contaminant level for total
trihalomethanes.
142.61 Variances from the maximum contaminant level for fluoride.
142.62 Variances and exemptions from the maximum contaminant levels for
organic and inorganic chemicals.
142.63 Variances and exemptions from the maximum contaminant level for
total coliforms.
142.64 Variances and exemptions from the requirements of part 141,
subpart H--Filtration and Disinfection.
Subpart H--Indian Tribes
142.72 Requirements for Tribal eligibility.
142.76 Request by an Indian Tribe for a determination of eligibility.
142.78 Procedure for processing an Indian Tribe's application.
Subpart I--Administrator's Review of State Decisions that Implement
Criteria Under Which Filtration Is Required
142.80 Review procedures.
142.81 Notice to the State.
Subpart J--Procedures for PWS Administrative Compliance Orders
142.201 Purpose.
142.202 Definitions.
142.203 Proposed administrative compliance orders.
142.204 Notice of proposed administrative compliance orders.
142.205 Opportunity for public hearings; opportunity for State
conferences.
142.206 Conduct of public hearings.
142.207 Issuance, amendment or withdrawal of administrative compliance
order.
142.208 Administrative assessment of civil penalty for violation of
administrative compliance order.
Authority: 42 U.S.C. 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5,
300g-6, 300j-4, and 300j-9.
Source: 41 FR 2918, Jan. 20, 1976, unless otherwise noted.
Subpart A--General Provisions
Sec. 142.1 Applicability.
This part sets forth, pursuant to sections 1413 through 1416, 1445,
and 1450 of the Public Health Service Act, as amended by the Safe
Drinking Water Act, Public Law 93-523, regulations for the
implementation and enforcement of the national primary drinking water
regulations contained in part 141 of this chapter.
Sec. 142.2 Definitions.
As used in this part, and except as otherwise specifically provided:
Act means the Public Health Service Act.
[[Page 431]]
Administrator means the Administrator of the United States
Environmental Protection Agency or his authorized representative.
Agency means the United States Environmental Protection Agency.
Approved State primacy program consists of those program elements
listed in Sec. 142.11(a) that were submitted with the initial State
application for primary enforcement authority and approved by the EPA
Administrator and all State program revisions thereafter that were
approved by the EPA Administrator.
Contaminant means any physical, chemical, biological, or
radiological substance or matter in water.
Federal agency means any department, agency, or instrumentality of
the United States.
Indian Tribe means any Indian Tribe having a Federally recognized
governing body carrying out substantial governmental duties and powers
over a defined area.
Interstate Agency means an agency of two or more States established
by or under an agreement or compact approved by the Congress, or any
other agency of two or more States or Indian Tribes having substantial
powers or duties pertaining to the control of pollution as determined
and approved by the Administrator.
Maximum contaminant level means the maximum permissible level of a
contaminant in water which is delivered to the free flowing outlet of
the ultimate user of a public water system; except in the case of
turbidity where the maximum permissible level is measured at the point
of entry to the distribution system. Contaminants added to the water
under circumstances controlled by the user, except for those resulting
from corrosion of piping and plumbing caused by water quality are
excluded from this definition.
Municipality means a city, town, or other public body created by or
pursuant to State law, or an Indian Tribe which does not meet the
requirements of subpart H of this part.
National primary drinking water regulation means any primary
drinking water regulation contained in part 141 of this chapter.
Person means an individual; corporation; company; association;
partnership; municipality; or State, federal, or Tribal agency.
Primary enforcement responsibility means the primary responsibility
for administration and enforcement of primary drinking water regulations
and related requirements applicable to public water systems within a
State.
Public water system means a system for the provision to the public
of piped water for human consumption, if such system has at least
fifteen service connections or regularly serves an average of at least
twenty-five individuals daily at least 60 days out of the year. Such
term includes (1) any collection, treatment, storage, and distribution
facilities under control of the operator of such system and used
primarily in connection with such system, and (2) any collection or
pretreatment storage facilities not under such control which are used
primarily in connection with such system.
Sanitary survey means an onsite review of the water source,
facilities, equipment, operation and maintenance of a public water
system for the purpose of evaluating the adequacy of such source,
facilities, equipment, operation and maintenance for producing and
distributing safe drinking water.
State means one of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, the
Trust Territory of the Pacific Islands, or an eligible Indian tribe.
State primary drinking water regulation means a drinking water
regulation of a State which is comparable to a national primary drinking
water regulation.
State program revision means a change in an approved State primacy
program.
Supplier of water means any person who owns or operates a public
water system.
Treatment technique requirement means a requirement of the national
primary drinking water regulations which specifies for a contaminant a
specific treatment technique(s) known to the Administrator which leads
to a
[[Page 432]]
reduction in the level of such contaminant sufficient to comply with the
requirements of part 141 of this chapter.
[41 FR 2918, Jan. 20, 1976, as amended at 53 FR 37410, Sept. 26, 1988;
54 FR 52137, Dec. 20, 1989; 59 FR 64344, Dec. 14, 1994]
Sec. 142.3 Scope.
(a) Except where otherwise provided, this part applies to each
public water system in each State; except that this part shall not apply
to a public water system which meets all of the following conditions:
(1) Which consists only of distribution and storage facilities (and
does not have any collection and treatment facilities);
(2) Which obtains all of its water from, but is not owned or
operated by, a public water system to which such regulations apply;
(3) Which does not sell water to any person; and
(4) Which is not a carrier which conveys passengers in interstate
commerce.
(b) In order to qualify for primary enforcement responsibility, a
State's program for enforcement of primary drinking water regulations
must apply to all other public water systems in the State, except for:
(1) Public water systems on carriers which convey passengers in
interstate commerce;
(2) Public water systems on Indian land with respect to which the
State does not have the necessary jurisdiction or its jurisdiction is in
question; or
(3) Public water systems owned or maintained by a Federal agency
where the Administrator has waived compliance with national primary
drinking water regulations pursuant to section 1447(b) of the Act.
(c) Section 1451 of the SDWA authorizes the Administrator to
delegate primary enforcement responsibility for public water systems to
Indian Tribes. An Indian Tribe must meet the statutory criteria at 42
U.S.C. 300j-11(b)(1) before it is eligible to apply for Public Water
System Supervision grants and primary enforcement responsibility. All
primary enforcement responsibility requirements of parts 141 and 142
apply to Indian Tribes except where specifically noted.
[41 FR 2918, Jan. 20, 1976, as amended at 53 FR 37410, Sept. 26, 1988;
59 FR 64344, Dec. 14, 1994]
Sec. 142.4 State and local authority.
Nothing in this part shall diminish any authority of a State or
political subdivision to adopt or enforce any law or regulation
respecting drinking water regulations or public water systems, but no
such law or regulation shall relieve any person of any requirements
otherwise applicable under this part.
Subpart B--Primary Enforcement Responsibility
Sec. 142.10 Requirements for a determination of primary enforcement responsibility.
A State has primary enforcement responsibility for public water
systems in the State during any period for which the Administrator
determines, based upon a submission made pursuant to Sec. 142.11, and
submission under Sec. 142.12, that such State, pursuant to appropriate
State legal authority:
(a) Has adopted drinking water regulations which are no less
stringent than the national primary drinking water regulations (NPDWRs)
in effect under part 141 of this chapter;
(b) Has adopted and is implementing adequate procedures for the
enforcement of such State regulations, such procedures to include:
(1) Maintenance of an inventory of public water systems.
(2) A systematic program for conducting sanitary surveys of public
water systems in the State, with priority given to sanitary surveys of
public water systems not in compliance with State primary drinking water
regulations.
(3)(i) The establishment and maintenance of a State program for the
certification of laboratories conducting analytical measurements of
drinking water contaminants pursuant to the requirements of the State
primary drinking water regulations including the designation by the
State of a laboratory officer, or officers, certified by
[[Page 433]]
the Administrator, as the official(s) responsible for the State's
certification program. The requirements of this paragraph may be waived
by the Administrator for any State where all analytical measurements
required by the State's primary drinking water regulations are conducted
at laboratories operated by the State and certified by the Agency. Until
such time as the Agency establishes a National quality assurance program
for laboratory certification the State shall maintain an interim program
for the purpose of approving those laboratories from which the required
analytical measurements will be acceptable.
(ii) Upon a showing by an Indian Tribe of an intergovernmental or
other agreement to have all analytical tests performed by a certified
laboratory, the Administrator may waive this requirement.
(4) Assurance of the availability to the State of laboratory
facilities certified by the Administrator and capable of performing
analytical measurements of all contaminants specified in the State
primary drinking water regulations. Until such time as the Agency
establishes a National quality assurance program for laboratory
certification the Administrator will approve such State laboratories on
an interim basis.
(5) The establishment and maintenance of an activity to assure that
the design and construction of new or substantially modified public
water system facilities will be capable of compliance with the State
primary drinking water regulations.
(6) Statutory or regulatory enforcement authority adequate to compel
compliance with the State primary drinking water regulations in
appropriate cases, such authority to include:
(i) Authority to apply State primary drinking water regulations to
all public water systems in the State covered by the national primary
drinking water regulations, except for interstate carrier conveyances
and systems on Indian land with respect to which the State does not have
the necessary jurisdiction or its jurisdiction is in question.
(ii) Authority to sue in courts of competent jurisdiction to enjoin
any threatened or continuing violation of the State primary drinking
water regulations.
(iii) Right of entry and inspection of public water systems,
including the right to take water samples, whether or not the State has
evidence that the system is in violation of an applicable legal
requirement.
(iv) Authority to require suppliers of water to keep appropriate
records and make appropriate reports to the State.
(v) Authority to require public water systems to give public notice
that is no less stringent than the EPA requirements in Secs. 141.32 and
142.16(a).
(vi) Authority to assess civil or criminal penalties for violation
of the State's primary drinking water regulations and public
notification requirements, including the authority to assess daily
penalties or multiple penalties when a violation continues;
(c) Has established and will maintain record keeping and reporting
of its activities under paragraphs (a), (b) and (d) in compliance with
Secs. 142.14 and 142.15;
(d) If it permits 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 under sections 1415 and 1416 of the Act. In granting
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
and exemptions by the Administrator in States that do not have primary
enforcement responsibility, provided, that the State procedures meet the
requirements of this paragraph); and
(e) Has adopted and can implement an adequate plan for the provision
of safe drinking water under emergency circumstances.
[[Page 434]]
(f) An Indian Tribe shall not be required to exercise criminal
enforcement jurisdiction to meet the requirements for primary
enforcement responsibility.
[41 FR 2918, Jan. 20, 1976, as amended at 43 FR 5373, Feb. 8, 1978; 52
FR 20675, June 2, 1987; 52 FR 41550, Oct. 28, 1987; 53 FR 37410, Sept.
26, 1988; 54 FR 15188, Apr. 17, 1989; 54 FR 52138, Dec. 20, 1989]
Sec. 142.11 Initial determination of primary enforcement responsibility.
(a) A State may apply to the Administrator for a determination that
the State has primary enforcement responsibility for public water
systems in the State pursuant to section 1413 of the Act. The
application shall be as concise as possible and include a side-by-side
comparison of the Federal requirements and the corresponding State
authorities, including citations to the specific statutes and
administrative regulations or ordinances and, wherever appropriate,
judicial decisions which demonstrate adequate authority to meet the
requirements of Sec. 142.10. The following information is to be included
with the State application.
(1) The text of the State's primary drinking water regulations, with
references to those State regulations that vary from comparable
regulations set forth in part 141 of this chapter, and a demonstration
that any different State regulation is at least as stringent as the
comparable regulation contained in part 141.
(2) A description, accompanied by appropriate documentation, of the
State's procedures for the enforcement of the State primary drinking
water regulations. The submission shall include:
(i) A brief description of the State's program to maintain a current
inventory of public water systems.
(ii) A brief description of the State's program for conducting
sanitary surveys, including an explanation of the priorities given to
various classes of public water systems.
(iii) A brief description of the State's laboratory approval or
certification program, including the name(s) of the responsible State
laboratory officer(s) certified by the Administrator.
(iv) Identification of laboratory facilities, available to the
State, certified or approved by the Administrator and capable of
performing analytical measurements of all contaminants specified in the
State's primary drinking water regulations.
(v) A brief description of the State's program activity to assure
that the design and construction of new or substantially modified public
water system facilities will be capable of compliance with the
requirements of the State primary drinking water regulations.
(vi) Copies of State statutory and regulatory provisions authorizing
the adoption and enforcement of State primary drinking water
regulations, and a brief description of State procedures for
administrative or judicial action with respect to public water systems
not in compliance with such regulations.
(3) A statement that the State will make such reports and will keep
such records as may be required pursuant to Secs. 142.14 and 142.15.
(4) If the State permits variances or exemptions from its primary
drinking water regulations, the text of the State's statutory and
regulatory provisions concerning variances and exemptions.
(5) A brief description of the State's plan for the provision of
safe drinking water under emergency conditions. NOTE: In satisfaction of
this requirement, for public water supplies from groundwater sources,
EPA will accept the contingency plan for providing alternate drinking
water supplies that is part of a State's Wellhead Protection Program,
where such program has been approved by EPA pursuant to section 1428 of
the SDWA.
(6)(i) A statement by the State Attorney General (or the attorney
for the State primacy agency if it has independent legal counsel) or the
attorney representing the Indian tribe that certifies that the laws and
regulations adopted by the State or tribal ordinances to carry out the
program were duly adopted and are enforceable. State statutes and
regulations cited by the State Attorney General and tribal ordinances
cited by the attorney representing the Indian tribe shall be in the
[[Page 435]]
form of lawfully adopted State statutes and regulations or tribal
ordinances at the time the certification is made and shall be fully
effective by the time the program is approved by EPA. To qualify as
``independent legal counsel,'' the attorney signing the statement
required by this section shall have full authority to independently
represent the State primacy agency or Indian tribe in court on all
matters pertaining to the State or tribal program.
(ii) After EPA has received the documents required under paragraph
(a) of this section, EPA may selectively require supplemental statements
by the State Attorney General (or the attorney for the State primacy
agency if it has independent legal counsel) or the attorney representing
the Indian tribe. Each supplemental statement shall address all issues
concerning the adequacy of State authorities to meet the requirements of
Sec. 142.10 that have been identified by EPA after thorough examination
as unresolved by the documents submitted under paragraph (a) of this
section.
(b) (1) The administrator shall act on an application submitted
pursuant to Sec. 142.11 within 90 days after receiving such application,
and shall promptly inform the State in writing of this action. If he
denies the application, his written notification to the State shall
include a statement of reasons for the denial.
(2) A final determination by the Administrator that a State has met
or has not met the requirements for primary enforcement responsibility
shall take effect in accordance with the public notice requirements and
related procedures under Sec. 142.13.
(3) When the Administrator's determination becomes effective
pursuant to Sec. 142.13, it shall continue in effect unless terminated
pursuant to Sec. 142.17.
[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 52138, Dec. 20, 1989; 60
FR 33661, June 28, 1995]
Sec. 142.12 Revision of State programs.
(a) General requirements. Either EPA or the primacy State may
initiate actions that require the State to revise its approved State
primacy program. To retain primary enforcement responsibility, States
must adopt all new and revised national primary drinking water
regulations promulgated in part 141 of this chapter and any other
requirements specified in this part.
(1) Whenever a State revises its approved primacy program to adopt
new or revised Federal regulations, the State must submit a request to
the Administrator for approval of the program revision, using the
procedures described in paragraphs (b), (c), and (d) of this section.
The Administrator shall approve or disapprove each State request for
approval of a program revision based on the requirements of the Safe
Drinking Water Act and of this part.
(2) For all State program revisions not covered under
Sec. 142.12(a)(1), the review procedures outlined in Sec. 142.17(a)
shall apply.
(b) Timing of State requests for approval of program revisions to
adopt new or revised Federal regulations. (1) Complete and final State
requests for approval of program revisions to adopt new or revised EPA
regulations must be submitted to the Administrator within 18 months
after promulgation of the new or revised EPA regulations, unless the
State requests an extension and the Administrator has approved the
request pursuant to paragraph (b)(2) of this section. If the State
expects to submit a final State request for approval of a program
revision to EPA more than 18 months after promulgation of the new or
revised EPA regulations, the State shall request an extension of the
deadline before the expiration of the 18-month period.
(2) The final date for submission of a complete and final State
request for a program revision may be extended by EPA for up to a two-
year period upon a written application by the State to the
Administrator. In the extension application the State must demonstrate
it is requesting the extension because it cannot meet the original
deadline for reasons beyond its control despite a good faith effort to
do so. The application must include a schedule for the submission of a
final request by a certain time and provide sufficient information to
demonstrate that the State:
(i)(A) Currently lacks the legislative or regulatory authority to
enforce the new or revised requirements, or
[[Page 436]]
(B) Currently lacks the program capability adequate to implement the
new or revised requirements; or
(C) Is requesting the extension to group two or more program
revisions in a single legislative or regulatory action; and
(ii) Is implementing the EPA requirements to be adopted by the State
in its program revision pursuant to paragraph (b)(3) of this section
within the scope of its current authority and capabilities.
(3) To be granted an extension, the State must agree with EPA to
meet certain requirements during the extension period, which may include
the following types of activities as determined appropriate by the
Administrator on a case-by-case basis:
(i) Informing public water systems of the new EPA (and upcoming
State) requirements and that EPA will be overseeing implementation of
the requirements until EPA approves the State program revision;
(ii) Collecting, storing and managing laboratory results, public
notices, and other compliance and operation data required by the EPA
regulations;
(iii) Assisting EPA in the development of the technical aspects of
enforcement actions and conducting informal follow-up on violations
(telephone calls, letters, etc.);
(iv) Providing technical assistance to public water systems;
(v) Providing EPA with all information prescribed by Sec. 142.15 of
this part on State reporting; and
(vi) For States whose request for an extension is based on a current
lack of program capability adequate to implement the new requirements,
taking steps agreed to by EPA and the State during the extension period
to remedy the deficiency.
(c) Contents of a State request for approval of a program revision.
(1) The State request for EPA approval of a program revision shall be
concise and must include:
(i) The documentation necessary (pursuant to Sec. 142.11(a)) to
update the approved State primacy program, and identification of those
elements of the approved State primacy program that have not changed
because of the program revision. The documentation shall include a side-
by-side comparison of the Federal requirements and the corresponding
State authorities, including citations to the specific statutes and
administrative regulations or ordinances and, wherever appropriate,
judicial decisions which demonstrate adequate authority to meet the
requirements of Sec. 142.10 as they apply to the program revision.
(ii) Any additional materials that are listed in Sec. 142.16 of this
part for a specific EPA regulation, as appropriate; and
(iii) For a complete and final State request only, unless one of the
conditions listed in paragraph (c)(2) of this section are met, a
statement by the State Attorney General (or the attorney for the State
primacy agency if it has independent legal counsel) or the attorney
representing the Indian tribe that certifies that the laws and
regulations adopted by the State or tribal ordinances to carry out the
program revision were duly adopted and are enforceable. State statutes
and regulations cited by the State Attorney General and tribal
ordinances cited by the attorney for the Indian tribe shall be in the
form of lawfully adopted State statutes and regulations or tribal
ordinances at the time the certification is made and shall be fully
effective by the time the request for program revision is approved by
EPA. To qualify as ``independent legal counsel,'' the attorney signing
the statement required by this section shall have full authority to
independently represent the State primacy agency or tribe in court on
all matters pertaining to the State or tribal program.
(2) An Attorney General's statement will be required as part of the
State request for EPA approval of a program revision unless EPA
specifically waives this requirement for a specific regulation at the
time EPA promulgates the regulation, or by later written notice from the
Administrator to the State.
(3) After EPA has received the documents required under paragraph
(c)(1) of this section, EPA may selectively require supplemental
statements by the State Attorney General (or the attorney for the State
primacy agency if it has independent legal counsel) or the attorney
representing the Indian tribe.
[[Page 437]]
Each supplemental statement shall address all issues concerning the
adequacy of State authorities to meet the requirements of Sec. 142.10
that have been identified by EPA after thorough examination as
unresolved by the documents submitted under paragraph (c)(1) of this
section.
(d) Procedures for review of a State request for approval of a
program revision--(1) Preliminary request. (i) The State may submit to
the Administrator for his or her review a preliminary request for
approval of each program revision, containing the information listed in
paragraph (c)(1) of this section, in draft form. The preliminary request
does not require an Attorney General's statement in draft form, but does
require draft State statutory or regulatory changes and a side-by-side
comparison of State authorities with EPA requirements to demonstrate
that the State program revision meets EPA requirements under Sec. 142.10
of this part. The preliminary request should be submitted to the
Administrator as soon as practicable after the promulgation of the EPA
regulations.
(ii) The Administrator will review the preliminary request submitted
in accordance with paragraph (d)(1)(i) of this section and make a
tentative determination on the request. The Administrator will send the
tentative determination and other comments or suggestions to the State
for its use in developing the State's final request under paragraph
(d)(2) of this section.
(2) Final request. The State must submit a complete and final
request for approval of a program revision to the Administrator for his
or her review and approval. The request must contain the information
listed in paragraph (c)(1) of this section in complete and final form,
in accordance with any tentative determination EPA may have issued.
Complete and final State requests for program revisions shall be
submitted within 18 months of the promulgation of the new or revised EPA
regulations, as specified in paragraph (b) of this section.
(3) EPA's determination on a complete and final request. (i) The
Administrator shall act on a State's request for approval of a program
revision within 90 days after determining that the State request is
complete and final and shall promptly notify the State of his/her
determination.
(ii) If the Administrator disapproves a final request for approval
of a program revision, the Administrator will notify the State in
writing. Such notification will include a statement of the reasons for
disapproval.
(iii) A final determination by the Administrator on a State's
request for approval of a program revision shall take effect in
accordance with the public notice requirements and related procedures
under Sec. 142.13.
[54 FR 52138, Dec. 20, 1989]
Sec. 142.13 Public hearing.
(a) The Administrator shall provide an opportunity for a public
hearing before a final determination pursuant to Sec. 142.11 that the
State meets or does not meet the requirements for obtaining primary
enforcement responsibility, or a final determination pursuant to
Sec. 142.12(d)(3) to approve or disapprove a State request for approval
of a program revision, or a final determination pursuant to Sec. 142.17
that a State no longer meets the requirements for primary enforcement
responsibility.
(b) The Administrator shall publish notice of any determination
specified in paragraph (a) of this section in the Federal Register and
in a newspaper or newspapers of general circulation in the State
involved within 15 days after making such determination, with a
statement of his reasons for the determination. Such notice shall inform
interested persons that they may request a public hearing on the
Administrator's determination. Such notice shall also indicate one or
more locations in the State where information submitted by the State
pursuant to Sec. 142.11 is available for inspection by the general
public. A public hearing may be requested by any interested person other
than a Federal agency. Frivolous or insubstantial requests for hearing
may be denied by the Administrator.
(c) Requests for hearing submitted pursuant to paragraph (b) of this
section shall be submitted to the Administrator within 30 days after
publication of notice of opportunity for hearing in the Federal
Register. Such requests
[[Page 438]]
shall include the following information:
(1) The name, address and telephone number of the individual,
organization or other entity requesting a hearing.
(2) A brief statement of the requesting person's interest in the
Administrator's determination and of information that the requesting
person intends to submit at such hearing.
(3) The signature of the individual making the request; or, if the
request is made on behalf of an organization or other entity, the
signature of a responsible official of the organization or other entity.
(d) The Administrator shall give notice in the Federal Register and
in a newspaper or newspapers of general circulation in the State
involved of any hearing to be held pursuant to a request submitted by an
interested person or on his own motion. Notice of the hearing shall also
be sent to the person requesting a hearing, if any, and to the State
involved. Notice of the hearing shall include a statement of the purpose
of the hearing, information regarding the time and location or locations
for the hearing and the address and telephone number of an office at
which interested persons may obtain further information concerning the
hearing. At least one hearing location specified in the public notice
shall be within the involved State. Notice of hearing shall be given not
less than 15 days prior to the time scheduled for the hearing.
(e) Hearings convened pursuant to paragraph (d) of this section
shall be conducted before a hearing officer to be designated by the
Administrator. The hearing shall be conducted by the hearing officer in
an informal, orderly and expeditious manner. The hearing officer shall
have authority to call witnesses, receive oral and written testimony and
take such other action as may be necessary to assure the fair and
efficient conduct of the hearing. Following the conclusion of the
hearing, the hearing officer shall forward the record of the hearing to
the Administrator.
(f) After reviewing the record of the hearing, the Administrator
shall issue an order affirming the determination referred to in
paragraph (a) of this section or rescinding such determination. If the
determination is affirmed, it shall become effective as of the date of
the Administrator's order.
(g) If no timely request for hearing is received and the
Administrator does not determine to hold a hearing on his own motion,
the Administrator's determination shall become effective 30 days after
notice is issued pursuant to paragraph (b) of this section.
(h) If a determination of the Administrator that a State no longer
meets the requirements for primary enforcement responsibility becomes
effective, the State may subsequently apply for a determination that it
meets such requirements by submitting to the Administrator information
demonstrating that it has remedied the deficiencies found by the
Administrator without adversely sacrificing other aspects of its program
required for primary enforcement responsibility.
[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 52140, Dec. 20, 1989; 60
FR 33661, June 28, 1995]
Sec. 142.14 Records kept by States.
(a) Each State which has primary enforcement responsibility shall
maintain records of tests, measurements, analyses, decisions, and
determinations performed on each public water system to determine
compliance with applicable provisions of State primary drinking water
regulations.
(1) Records of microbiological analyses shall be retained for not
less than 1 year. Actual laboratory reports may be kept or data may be
transferred to tabular summaries, provided that the information retained
includes:
(i) The analytical method used;
(ii) The number of samples analyzed each month;
(iii) The analytical results, set forth in a form which makes
possible comparison with the limits specified in Secs. 141.63, 141.71,
and 141.72 of this chapter.
(2) Records of microbiological analyses of repeat or special samples
shall be retained for not less than one year in the form of actual
laboratory reports or in an appropriate summary form.
(3) Records of turbidity measurements shall be kept for not less
than one year. The information retained
[[Page 439]]
must be set forth in a form which makes possible comparison with the
limits specified in Secs. 141.71 and 141.73 of this chapter. Until June
29, 1993, for any public water system which is providing filtration
treatment and until December 30, 1991, for any public water system not
providing filtration treatment and not required by the State to provide
filtration treatment, records kept must be set forth in a form which
makes possible comparison with the limits contained in Sec. 141.13.
(i) Date and place of sampling.
(ii) Date and results of analyses.
(4)(i) Records of disinfectant residual measurements and other
parameters necessary to document disinfection effectiveness in
accordance with Secs. 141.72 and 141.74 of this chapter and the
reporting requirements of Sec. 141.75 of this chapter shall be kept for
not less than one year.
(ii) Records of decisions made on a system-by-system and case-by-
case basis under provisions of part 141, subpart H, shall be made in
writing and kept at the State.
(A) Records of decisions made under the following provisions shall
be kept for 40 years (or until one year after the decision is reversed
or revised) and a copy of the decision must be provided to the system:
(1) Section 141.73(a)(1)--Any decision to allow a public water
system using conventional filtration treatment or direct filtration to
substitute a turbidity limit greater than 0.5 NTU;
(2) Section 141.73(b)(1)--Any decision to allow a public water
system using slow sand filtration to substitute a turbidity limit
greater than 1 NTU;
(3) Section 141.74(b)(2)--Any decision to allow an unfiltered public
water system to use continuous turbidity monitoring;
(4) Section 141.74(b)(6)(i)--Any decision to allow an unfiltered
public water system to sample residual disinfectant concentration at
alternate locations if it also has ground water source(s);
(5) Section 141.74(c)(1)--Any decision to allow a public water
system using filtration treatment to use continuous turbidity
monitoring; or a public water system using slow sand filtration or
filtration treatment other than conventional treatment, direct
filtration or diatomaceous earth filtration to reduce turbidity sampling
to once per day; or for systems serving 500 people or fewer to reduce
turbidity sampling to once per day;
(6) Section 141.74(c)(3)(i)--Any decision to allow a filtered public
water system to sample disinfectant residual concentration at alternate
locations if it also has ground water source(s);
(7) Section 141.75(a)(2)(ix)--Any decision to allow reduced
reporting by an unfiltered public water system; and
(8) Section 141.75(b)(2)(iv)--Any decision to allow reduced
reporting by a filtered public water system.
(B) Records of decisions made under the following provisions shall
be kept for one year after the decision is made:
(1) Section 141.71(b)(1)(i)--Any decision that a violation of
monthly CT compliance requirements was caused by circumstances that were
unusual and unpredictable.
(2) Section 141.71(b)(1)(iv)--Any decision that a violation of the
disinfection effectiveness criteria was not caused by a deficiency in
treatment of the source water;
(3) Section 141.71(b)(5)--Any decision that a violation of the total
coliform MCL was not caused by a deficiency in treatment of the source
water;
(4) Section 141.74(b)(1)--Any decision that total coliform
monitoring otherwise required because the turbidity of the source water
exceeds 1 NTU is not feasible, except that if such decision allows a
system to avoid monitoring without receiving State approval in each
instance, records of the decision shall be kept until one year after the
decision is rescinded or revised.
(C) Records of decisions made under the following provisions shall
be kept for the specified period or 40 years, whichever is less.
(1) Section 141.71(a)(2)(i)--Any decision that an event in which the
source water turbidity which exceeded 5 NTU for an unfiltered public
water system was unusual and unpredictable shall be kept for 10 years.
(2) Section 141.71(b)(1)(iii)--Any decision by the State that
failure to meet the disinfectant residual concentration requirements of
Sec. 141.72(a)(3)(i) was caused by circumstances that were unusual and
unpredictable, shall be kept
[[Page 440]]
unless filtration is installed. A copy of the decision must be provided
to the system.
(3) Section 141.71(b)(2)--Any decision that a public water system's
watershed control program meets the requirements of this section shall
be kept until the next decision is available and filed.
(4) Section 141.70(c)--Any decision that an individual is a
qualified operator for a public water system using a surface water
source or a ground water source under the direct influence of surface
water shall be maintained until the qualification is withdrawn. The
State may keep this information in the form of a list which is updated
periodically. If such qualified operators are classified by category,
the decision shall include that classification.
(5) Section 141.71(b)(3)--Any decision that a party other than the
State is approved by the State to conduct on-site inspections shall be
maintained until withdrawn. The State may keep this information in the
form of a list which is updated periodically.
(6) Section 141.71(b)(4)--Any decision that an unfiltered public
water system has been identified as the source of a waterborne disease
outbreak, and, if applicable, that it has been modified sufficiently to
prevent another such occurrence shall be kept until filtration treatment
is installed. A copy of the decision must be provided to the system.
(7) Section 141.72--Any decision that certain interim disinfection
requirements are necessary for an unfiltered public water system for
which the State has determined that filtration is necessary, and a list
of those requirements, shall be kept until filtration treatment is
installed. A copy of the requirements must be provided to the system.
(8) Section 141.72(a)(2)(ii)--Any decision that automatic shut-off
of delivery of water to the distribution system of an unfiltered public
water system would cause an unreasonable risk to health or interfere
with fire protection shall be kept until rescinded.
(9) Section 141.72(a)(4)(ii)--Any decision by the State, based on
site-specific considerations, that an unfiltered system has no means for
having a sample transported and analyzed for HPC by a certified
laboratory under the requisite time and temperature conditions specified
by Sec. 141.74(a)(3) and that the system is providing adequate
disinfection in the distribution system, so that the disinfection
requirements contained in Sec. 141.72(a)(4)(i) do not apply, and the
basis for the decision, shall be kept until the decision is reversed or
revised. A copy of the decision must be provided to the system.
(10) Section 141.72(b)(3)(ii)--Any decision by the State, based on
site-specific conditions, that a filtered system has no means for having
a sample transported and analyzed for HPC by a certified laboratory
under the requisite time and temperature conditions specified by
Sec. 141.74(a)(3) and that the system is providing adequate disinfection
in the distribution system, so that the disinfection requirements
contained in Sec. 141.72(b)(3)(i) do not apply, and the basis for the
decision, shall be kept until the decision is reversed or revised. A
copy of the decision must be provided to the system.
(11) Section 141.73(d)--Any decision that a public water system,
having demonstrated to the State that an alternative filtration
technology, in combination with disinfection treatment, consistently
achieves 99.9 percent removal and/or inactivation of Giardia lamblia
cysts and 99.99 percent removal and/or inactivation of viruses, may use
such alternative filtration technology, shall be kept until the decision
is reversed or revised. A copy of the decision must be provided to the
system.
(12) Section 141.74(b), Table 3.1--Any decision that a system using
either preformed chloramines or chloramines formed by the addition of
ammonia prior to the addition of chlorine has demonstrated that 99.99
percent removal --nd/or inactivation of viruses has been achieved at
particular CT values, and a list of those values, shall be kept until
the decision is reversed or revised. A copy of the list of required
values must be provided to the system.
(13) Section 141.74(b)(3)(v)--Any decision that a system using a
disinfectant other than chlorine may use CT99.9 values other than
those in Tables 2.1 or 3.1 and/or other operational parameters to
[[Page 441]]
determine if the minimum total inactivation rates required by
Sec. 141.72(a)(1) are being met, and what those values or parameters
are, shall be kept until the decision is reversed or revised. A copy of
the list of required values or parameters must be provided to the
system.
(14) Section 142.16(b)(2)(i)(B)--Any decision that a system using a
ground water source is under the direct influence of surface water.
(iii) Records of any determination that a public water system
supplied by a surface water source or a ground water source under the
direct influence of surface water is not required to provide filtration
treatment shall be kept for 40 years or until withdrawn, whichever is
earlier. A copy of the determination must be provided to the system.
(5) Records of each of the following decisions made pursuant to the
total coliform provisions of part 141 shall be made in writing and
retained by the State.
(i) Records of the following decisions must be retained for 5 years.
(A) Section 141.21(b)(1)--Any decision to waive the 24-hour time
limit for collecting repeat samples after a total coliform-positive
routine sample if the public water system has a logistical problem in
collecting the repeat sample that is beyond the system's control, and
what alternative time limit the system must meet.
(B) Section 141.21(b)(5)--Any decision to allow a system to waive
the requirement for five routine samples the month following a total
coliform-positive sample. If the waiver decision is made as provided in
Sec. 141.21(b)(5), the record of the decision must contain all the items
listed in that paragraph.
(C) Section 141.21(c)--Any decision to invalidate a total coliform-
positive sample. If the decision to invalidate a total coliform-positive
sample as provided in Sec. 141.21(c)(1)(iii) is made, the record of the
decision must contain all the items listed in that paragraph.
(ii) Records of each of the following decisions must be retained in
such a manner so that each system's current status may be determined.
(A) Section 141.21(a)(2)--Any decision to reduce the total coliform
monitoring frequency for a community water system serving 1,000 persons
or fewer, that has no history of total coliform contamination in its
current configuration and had a sanitary survey conducted within the
past five years showing that the system is supplied solely by a
protected groundwater source and is free of sanitary defects, to less
than once per month, as provided in Sec. 141.21(a)(2); and what the
reduced monitoring frequency is. A copy of the reduced monitoring
frequency must be provided to the system.
(B) Section 141.21(a)(3)(i)--Any decision to reduce the total
coliform monitoring frequency for a non-community water system using
only ground water and serving 1,000 persons or fewer to less than once
per quarter, as provided in Sec. 141.21(a)(3)(i), and what the reduced
monitoring frequency is. A copy of the reduced monitoring frequency must
be provided to the system.
(C) Section 141.21(a)(3)(ii)--Any decision to reduce the total
coliform monitoring frequency for a non-community water system using
only ground water and serving more than 1,000 persons during any month
the system serves 1,000 persons or fewer, as provided in
Sec. 141.21(a)(3)(ii). A copy of the reduced monitoring frequency must
be provided to the system.
(D) Section 141.21(a)(5)--Any decision to waive the 24-hour limit
for taking a total coliform sample for a public water system which uses
surface water, or ground water under the direct influence of surface
water, and which does not practice filtration in accordance with part
141, subpart H, and which measures a source water turbidity level
exceeding 1 NTU near the first service connection as provided in
Sec. 141.21(a)(5).
(E) Section 141.21(d)(1)--Any decision that a non-community water
system is using only protected and disinfected ground water and
therefore may reduce the frequency of its sanitary survey to less than
once every five years, as provided in Sec. 141.21(d), and what that
frequency is. A copy of the reduced frequency must be provided to the
system.
(F) Section 141.21(d)(2)--A list of agents other than the State, if
any, approved by the State to conduct sanitary surveys.
[[Page 442]]
(G) Section 141.21(e)(2)--Any decision to allow a public water
system to forgo fecal coliform or E. coli testing on a total coliform-
positive sample if that system assumes that the total coliform-positive
sample is fecal coliform-positive or E. coli-positive, as provided in
Sec. 141.21(e)(2).
(6) Records of analysis for other than microbiological contaminants
(including total coliform, fecal coliform, and heterotrophic plate
count), residual disinfectant concentration, other parameters necessary
to determine disinfection effectiveness (including temperature and pH
measurements), and turbidity shall be retained for not less than 12
years and shall include at least the following information:
(i) Date and place of sampling.
(ii) Date and results of analyses.
(b) Records required to be kept pursuant to paragraph (a) of this
sec-
tion must be in a form admissible as evidence in State enforcement
proceedings.
(c) Each State which has primary enforcement responsibility shall
maintain current inventory information for every public water system in
the State and shall retain inventory records of public water systems for
not less than 12 years.
(d) Each State which has primary enforcement responsibility shall
retain, for not less than 12 years, files which shall include for each
such public water system in the State:
(1) Reports of sanitary surveys;
(2) Records of any State approvals;
(3) Records of any enforcement actions.
(4) A record of the most recent vulnerability determination,
including the monitoring results and other data supporting the
determination, the State's findings based on the supporting data and any
additional bases for such determination; except that it shall be kept in
perpetuity or until a more current vulnerability determination has been
issued.
(5) A record of all current monitoring requirements and the most
recent monitoring frequency decision pertaining to each contaminant,
including the monitoring results and other data supporting the decision,
the State's findings based on the supporting data and any additional
bases for such decision; except that the record shall be kept in
perpetuity or until a more recent monitoring frequency decision has been
issued.
(6) A record of the most recent asbestos repeat monitoring
determination, including the monitoring results and other data
supporting the determination, the State's findings based on the
supporting data and any additional bases for the determination and the
repeat monitoring frequency; except that these records shall be
maintained in perpetuity or until a more current repeat monitoring
determination has been issued.
(7) Records of annual certifications received from systems pursuant
to part 141, subpart K demonstrating the system's compliance with the
treatment techniques for acrylamide and/or epichlorohydrin in
Sec. 14.111.
(8) Records of the currently applicable or most recent State
determinations, including all supporting information and an explanation
of the technical basis for each decision, made under the following
provisions of 40 CFR, part 141, subpart I for the control of lead and
copper:
(i) Section 141.82(b)--decisions to require a water system to
conduct corrosion control treatment studies;
(ii) Section 141.82(d)--designations of optimal corrosion control
treatment;
(iii) Section 141.82(f)--designations of optimal water quality
parameters;
(iv) Section 141.82(h)--decisions to modify a public water system's
optimal corrosion control treatment or water quality parameters;
(v) Section 141.83(b)(2)--determinations of source water treatment;
and
(vi) Section 141.83(b)(4)--designations of maximum permissible lead
and copper concentrations in source water.
(vii) Section 141.84(e)--determinations that a system does not
control entire lead service lines.
(viii) Section 141.84(f)--determinations establishing a shorter lead
service line replacement schedule than required by Sec. 141.84.
(9) Records of reports and any other information submitted by PWSs
under Sec. 141.90;
[[Page 443]]
(10) Records of state activities, and the results thereof, to verify
compliance with State determinations issued under Secs. 141.82(f),
141.82(h), 141.83(b)(2), and 141.83(b)(4) and compliance with lead
service line replacement schedules under Sec. 141.84.
(11) Records of each system's currently applicable or most recently
designated monitoring requirements. If, for the records identified in
Secs. 142.14(d)(8)(i) through 142.14(d)(8)(viii) above, no change is
made to State decision during a 12 year retention period, the State
shall maintain the record until a new decision, determination or
designation has been issued.
(e) Each State which has primary enforcement responsibility shall
retain records pertaining to each variance and exemption granted by it
for a period of not less than 5 years following the expiration of such
variance or exemption.
(f) Records required to be kept under this section shall be
available to the Regional Administrator upon request. The records
required to be kept under this section shall be maintained and made
available for public inspection by the State, or, the State at its
option may require suppliers of water to make available for public
inspection those records maintained in accordance with Sec. 141.33.
[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 27537, June 29, 1989; 55
FR 25065, June 19, 1990; 56 FR 3595, Jan. 30, 1991; 56 FR 26562, June 7,
1991]
Sec. 142.15 Reports by States.
Each State which has primary enforcement responsibility shall submit
to the Administrator the following information:
(a) Each State which has primary enforcement responsibility shall
submit quarterly reports to the Administrator on a schedule and in a
format prescribed by the Administrator, consisting of the following
information:
(1) New violations by public water systems in the State during the
previous quarter of State regulations adopted to incorporate the
requirements of national primary drinking water regulations;
(2) New enforcement actions taken by the State during the previous
quarter against public water systems with respect to State regulations
adopted to incorporate the requirements of national primary drinking
water regulations;
(3) Notification of any new variance or exemption granted during the
previous quarter. The notice shall include a statement of reasons for
the granting of the variance or exemption, including documentation of
the need for the variance or exemption and the finding that the granting
of the variance or exemption will not result in an unreasonable risk to
health. The State may use a single notification statement to report two
or more similar variances or exemptions.
(b) Each State which has primary enforcement responsibility shall
submit annual reports to the Administrator on a schedule and in a format
prescribed by the Administrator, consisting of the following
information:
(1) All additions or corrections to the State's inventory of public
water systems;
(2) A summary of the status of each variance and exemption currently
in effect.
(c) Special reports. (1) Surface Water Treatment Rule. (i)(A) A list
identifying the name, PWS identification number and date of the
determination for each public water system supplied by a surface water
source or a ground water source under the direct influence of surface
water, which the State has determined is not required to provide
filtration treatment.
(B) A list identifying the name and PWS identification number of
each public water system supplied by a surface water source or ground
water source under the direct influence of surface water, which the
State has determined, based on an evaluation of site-specific
considerations, has no means of having a sample transported and analyzed
for HPC by a certified laboratory under the requisite time and
temperature conditions specified in Sec. 141.74(a)(3) and is providing
adequate disinfection in the distribution system, regardless of whether
the system is in compliance with the criteria of Sec. 141.72(a)(4)(i) or
(b)(3)(i) of this chapter, as allowed by Sec. 141.72(a)(4)(ii) and
(b)(3)(ii). The list must include the effective date of each
determination.
[[Page 444]]
(ii) Notification within 60 days of the end of the calendar quarter
of any determination that a public water system using a surface water
source or a ground water source under the direct influence of surface
water is not required to provide filtration treatment. The notification
must include a statement describing the system's compliance with each
requirement of the State's regulations that implement Sec. 141.71 and a
summary of comments, if any, received from the public on the
determination. A single notification may be used to report two or more
such determinations.
(2) Total coliforms. A list of public water systems which the State
is allowing to monitor less frequently than once per month for community
water systems or less frequently than once per quarter for non-community
water systems as provided in Sec. 141.21(a), including the effective
date of the reduced monitoring requirement for each system.
(3) The results of monitoring for unregulated contaminants shall be
reported quarterly.
(4) States shall report to EPA by May 15, August 15, November 15 and
February 15 of each year the following information related to each
system's compliance with the treatment techniques for lead and copper
under 40 CFR Part 141, Subpart I during the preceding calendar quarter.
Specifically, States shall report the name and PWS identification number
of:
(i) Each public water system which exceeded the lead and copper
action levels and the date upon which the exceedance occurred;
(ii) Each public water system required to complete the corrosion
control evaluation specified in Sec. 141.82(c) and the date the State
received the results of the evaluations from each system;
(iii) Each public water system for which the State has designated
optimal corrosion control treatment under Sec. 141.82(d), the date of
the determination, and each system that completed installation of
treatment as certified under Sec. 141.90(c)(3);
(iv) Each public water system for which the State has designated
optimal water quality parameters under Sec. 141.82(f) and the date of
the determination;
(v) Each public water system which the State has required to install
source water treatment under Sec. 141.83(b)(2), the date of the
determination, and each system that completed installation of treatment
as certified under Sec. 141.90(d)(2);
(vi) Each public water system for which the State has specified
maximum permissible source water levels under Sec. 141.83(b)(4); and
(vii) Each public water system required to begin replacing lead
service lines as specified in Sec. 141.84, each public water system for
which the State has established a replacement schedule under
Sec. 141.84(f), and each system reporting compliance with its
replacement schedule under Sec. 141.90(e)(2).
(d) The reports submitted pursuant to this section shall be made
available by the State to the public for inspection at one or more
locations within the State.
[41 FR 2918, Jan. 20, 1976, as amended at 43 FR 5373, Feb. 8, 1978; 54
FR 27539, June 29, 1989; 55 FR 52140, Dec. 20, 1989; 55 FR 25065, June
19, 1990; 56 FR 3595, Jan. 30, 1991; 56 FR 26562, June 7, 1991]
Sec. 142.16 Special primacy requirements.
(a) State public notification requirements. If a State exercises the
option specified in Sec. 141.32(b)(4) to authorize less frequent notice
for minor monitoring violations, it must adopt a program revision
enforceable under State authorities which promulgates rules specifying
either: (1) Which monitoring violations are minor and the frequency of
public notification for such violations; or (2) criteria for determining
which monitoring violations are minor and the frequency of public
notification.
(b) Requirements for States to adopt 40 CFR part 141, subpart H
Filtration and Disinfection. In addition to the general primacy
requirements enumerated elsewhere in this part, including the
requirement that State provisions are no less stringent than the federal
requirements, an application for approval of a State program revision
that adopts 40 CFR part 141, subpart H Filtration and Disinfection, must
contain the information specified in this paragraph (b),
[[Page 445]]
except that States which require without exception all public water
systems using a surface water source or a ground water source under the
direct influence of surface water to provide filtration need not
demonstrate that the State program has provisions that apply to systems
which do not provide filtration treatment. However, such States must
provide the text of the State statutes or regulations which specifies
that all public water systems using a surface water source or a ground
water source under the direct influence of surface water must provide
filtration.
(1) Enforceable requirements. In addition to adopting criteria no
less stringent than those specified in part 141, subpart H of this
chapter, the State's application must include enforceable design and
operating criteria for each filtration treatment technology allowed or a
procedure for establishing design and operating conditions on a system-
by-system basis (e.g., a permit system).
(2) State practices or procedures. (i) A State application for
program revision approval must include a description of how the State
will accomplish the following:
(A) Section 141.70(c) (qualification of operators)--Qualify
operators of systems using a surface water source or a ground water
source under the direct influence of surface water.
(B) Determine which systems using a ground water source are under
the direct influence of surface water by June 29, 1994 for community
water systems and by June 29, 1999 for non-community water systems.
(C) Section 141.72(b)(1) (achieving required Giardia lamblia and
virus removal in filtered systems)--Determine that the combined
treatment process incorporating disinfection treatment and filtration
treatment will achieve the required removal and/or inactivation of
Giardia lamblia and viruses.
(D) Section 141.74(a) (State approval of parties to conduct
analyses)--approve parties to conduct pH, temperature, turbidity, and
residual disinfectant concentration measurements.
(E) Determine appropriate filtration treatment technology for source
waters of various qualities.
(ii) For a State which does not require all public water systems
using a surface water source or ground water source under the direct
influence of surface water to provide filtration treatment, a State
application for program revision approval must include a description of
how the State will accomplish the following:
(A) Section 141.71(b)(2) (watershed control program)--Judge the
adequacy of watershed control programs.
(B) Section 141.71(b)(3) (approval of on-site inspectors)--Approve
on-site inspectors other than State personnel and evaluate the results
of on-site inspections.
(iii) For a State which adopts any of the following discretionary
elements of part 141 of this chapter, the application must describe how
the State will:
(A) Section 141.72 (interim disinfection requirements)--Determine
interim disinfection requirements for unfiltered systems which the State
has determined must filter which will be in effect until filtration is
installed.
(B) Section 141.72(a)(4)(ii) and (b)(3)(ii) (determination of
adequate disinfection in system without disinfectant residual)--
Determine that a system is unable to measure HPC but is still providing
adequate disinfection in the distribution system, as allowed by
Sec. 141.72(a)(4)(ii) for systems which do not provide filtration
treatment and Sec. 141.72(b)(3)(ii) for systems which do provide
filtration treatment.
(C) Section 141.73(a)(1) and (b)(1) (alternative turbidity limit)--
Determine whether an alternative turbidity limit is appropriate and what
the level should be as allowed by Sec. 141.73(a)(1) for a system using
conventiona1 filtration treatment or direct filtration and by
Sec. 141.73(b)(1) for a system using slow sand filtration.
(D) Section 141.73(d) (alternative filtration technologies)--
Determine that a public water system has demonstrated that an alternate
filtration technology, in combination with disinfection treatment,
achieves adequate removal and/or disinfection of Giardia lamblia and
viruses.
(E) Section 141.74(a)(5) (alternate analytical method for
chlorine)--Approve DPD colorimetric test kits for free and
[[Page 446]]
combined chlorine measurement or approve calibration of automated
methods by the Indigo Method for ozone determination.
(F) Section 141.74 (b)(2) and (c)(1) (approval of continuous
turbidity monitoring)--Approve continuous turbidity monitoring, as
allowed by Sec. 141.74(b)(2) for a public water system which does not
provide filtration treatment and Sec. 141.74(c)(1) for a system which
does provide filtration treatment.
(G) Section 141.74 (b)(6)(i) and (c)(3)(i) (approval of alternate
disinfectant residual concentration sampling plans)--Approve alternate
disinfectant residual concentration sampling plans for systems which
have a combined ground water and surface water or ground water and
ground water under the direct influence of a surface water distribution
system, as allowed by Sec. 141.74(b)(6)(i) for a public water system
which does not provide filtration treatment and Sec. 141.74(c)(3)(i) for
a public water system which does provide filtration treatment.
(H) Section 141.74(c)(1) (reduction of turbidity monitoring)--Decide
whether to allow reduction of turbidity monitoring for systems using
slow sand filtration, an approved alternate filtration technology or
serving 500 people or fewer.
(I) Section 141.75 (a)(2)(ix) and (b)(2)(iv) (reduced reporting)--
Determine whether reduced reporting is appropriate, as allowed by
Sec. 141.75(a)(2)(ix) for a public water system which does not provide
filtration treatment and Sec. 141.75(b)(2)(iv) for a public water system
which does provide filtration treatment.
(iv) For a State which does not require all public water systems
using a surface water source or ground water source under the direct
influence of surface water to provide filtration treatment and which
uses any of the following discretionary provisions, the application must
describe how the State will:
(A) Section 141.71(a)(2)(i) (source water turbidity requirements)--
Determine that an exceedance of turbidity limits in source water was
caused by circumstances that were unusual and unpredictable.
(B) Section 141.71(b)(1)(i) (monthly CT compliance requirements)--
Determine whether failure to meet the requirements for monthly CT
compliance in Sec. 141.72(a)(1) was caused by circumstances that were
unusual and unpredictable.
(C) Section 141.71(b)(1)(iii) (residual disinfectant concentration
requirements)--Determine whether failure to meet the requirements for
residual disinfectant concentration entering the distribution system in
Sec. 141.72(a)(3)(i) was caused by circumstances that were unusual and
unpredictable.
(D) Section 141.71(b)(1)(iv) (distribution system disinfectant
residual concentration requirements)--Determine whether failure to meet
the requirements for distribution system residual disinfectant
concentration in Sec. 141.72(a)(4) was related to a deficiency in
treatment.
(E) Section 141.71(b)(4) (system modification to prevent waterborne
disease outbreak)--Determine that a system, after having been identified
as the source of a waterborne disease outbreak, has been modified
sufficiently to prevent another such occurrence.
(F) Section 141.71(b)(5) (total coliform MCL)--Determine whether a
total coliform MCL violation was caused by a deficiency in treatment.
(G) Section 141.72(a)(1) (disinfection requirements)--Determine that
different ozone, chloramine, or chlorine dioxide CT99.9 values or
conditions are adequate to achieve required disinfection.
(H) Section 141.72(a)(2)(ii) (shut-off of water to distribution
system)--Determine whether a shut-off of water to the distribution
system when the disinfectant residual concentration entering the
distribution system is less than 0.2 mg/1 will cause an unreasonable
risk to health or interfere with fire protection.
(I) Section 141.74(b)(1) (coliform monitoring)--Determine that
coliform monitoring which otherwise might be required is not feasible
for a system.
(J) Section 141.74(b), Table 3.1 (disinfection with chloramines)--
Determine the conditions to be met to insure 99.99 percent removal and/
or inactivation of viruses in systems which use either preformed
chloramines or chloramines for which ammonia is
[[Page 447]]
added to the water before chlorine, as allowed by Table 3.1.
(c) Total coliform requirements. In addition to meeting the general
primacy requirements of this part, an application for approval of a
State program revision that adopts the requirements of the national
primary drinking water regulation for total coliforms must contain the
following information:
(1) The application must describe the State's plan for determining
whether sample siting plans are acceptable (including periodic reviews),
as required by Sec. 141.21(a)(1).
(2) The national primary drinking water regulation for total
coliforms in part 141 gives States the option to impose lesser
requirements in certain circumstances, which are listed below. If a
State chooses to exercise any of these options, its application for
approval of a program revision must include the information listed below
(the State need only provide the information listed for those options it
has chosen to use).
(i) Section 141.21(a)(2) (Reduced monitoring requirements for
community water systems serving 1,000 or fewer persons)--A description
of how the State will determine whether it is appropriate to reduce the
total coliform monitoring frequency for such systems using the criteria
in Sec. 141.21(a)(2) and how it will determine the revised frequency.
(ii) Section 141.21(a)(3)(i) (Reduced monitoring requirements for
non-community water systems using ground water and serving 1,000 persons
or fewer)--A description of how the State will determine whether it is
appropriate to reduce the total coliform monitoring frequency for such
systems using the criteria in Sec. 141.21(a)(3)(i) and how it will
determine the revised frequency.
(iii) Section 141.21(a)(3)(ii) (Reduced monitoring for non-community
water systems using ground water and serving more than 1,000 persons)--A
description of how the State will determine whether it is appropriate to
reduce the total coliform monitoring frequency for non-community water
systems using only ground water and serving more than 1,000 persons
during any month the system serves 1,000 persons or fewer and how it
will determine the revised frequency.
(iv) Section 141.21(a)(5) (Waiver of time limit for sampling after a
turbidity sampling result exceeds 1 NTU)--A description of how the State
will determine whether it is appropriate to waive the 24-hour time
limit.
(v) Section 141.21(b)(1) (Waiver of time limit for repeat samples)--
A description of how the State will determine whether it is appropriate
to waive the 24-hour time limit and how it will determine what the
revised time limit will be.
(vi) Section 141.21(b)(3) (Alternative repeat monitoring
requirements for systems with a single service connection)--A
description of how the State will determine whether it is appropriate to
allow a system with a single service connection to use an alternative
repeat monitoring scheme, as provided in Sec. 141.21(b)(3), and what the
alternative requirements will be.
(vii) Section 141.21(b)(5) (Waiver of requirement to take five
routine samples the month after a system has a total coliform-positive
sample)--A description of how the State will determine whether it is
appropriate to waive the requirement for certain systems to collect five
routine samples during the next month it serves water to the public,
using the criteria in Sec. 141.21(b)(5).
(viii) Section 141.21(c) (Invalidation of total coliform-positive
samples)--A description of how the State will determine whether it is
appropriate to invalidate a total coliform-positive sample, using the
criteria in Sec. 141.21(c).
(ix) Section 141.21(d) (Sanitary surveys)--A description of the
State's criteria and procedures for approving agents other than State
personnel to conduct sanitary surveys.
(x) Section 141.21(e)(2) (Waiver of fecal coliform or E. coli
testing on a total coliform-positive sample)--A description of how the
State will determine whether it is appropriate to waive fecal coliform
or E. coli testing on a total coliform-positive sample.
(d) Requirements for States to adopt 40 CFR part 141, Subpart I--
Control of Lead and Copper. An application for approval of a State
program revision which adopts the requirements specified in 40 CFR part
141, subpart I, must
[[Page 448]]
contain (in addition to the general primacy requirements enumerated
elsewhere in this part, including the requirement that State regulations
be at least as stringent as the federal requirements) a description of
how the State will accomplish the following program requirements:
(1) Sections 141.82(d), 141.82(f), 141.82(h)--Designating optimal
corrosion control treatment methods, optimal water quality parameters
and modifications thereto.
(2) Sections 141.83(b)(2) and 141.83(b)(4)--Designating source water
treatment methods, maximum permissible source water levels for lead and
copper and modifications thereto.
(3) Section 141.90(e)--Verifying compliance with lead service line
replacement schedules and of PWS demonstrations of limited control over
lead service lines.
(e) An application for approval of a State program revision which
adopts the requirements specified in Secs. 141.11, 141.23, 141.24,
141.32, 141.40, 141.61 and 141.62 must contain the following (in
addition to the general primacy requirements enumerated elsewhere in
this Part, including the requirement that State regulations be at least
as stringent as the federal requirements):
(1) If a State chooses to issue waivers from the monitoring
requirements in Secs. 141.23, 141.24, and 141.40, the State shall
describe the procedures and criteria which it will use to review waiver
applications and issue waiver determinations.
(i) The procedures for each contaminant or class of contaminants
shall include a description of:
(A) The waiver application requirements;
(B) The State review process for ``use'' waivers and for
``susceptibility'' waivers; and
(C) The State decision criteria, including the factors that will be
considered in deciding to grant or deny waivers. The decision criteria
must include the factors specified in Secs. 141.24(f)(8), 141.24(h)(6),
and 141.40(n)(4).
(ii) The State must specify the monitoring data and other
documentation required to demonstrate that the contaminant is eligible
for a ``use'' and/or ``susceptibility'' waiver.
(2) A monitoring plan for the initial monitoring period by which the
State will assure all systems complete the required initial monitoring
within the regulatory deadlines.
Note: States may update their monitoring plan submitted under the
Phase II Rule or simply note in their application that they will use the
same monitoring plan for the Phase V Rule.
(i) The initial monitoring plan must describe how systems will be
scheduled during the initial monitoring period and demonstrate that the
analytical workload on certified laboratories for each of the three
years has been taken into account, to assure that the State's plan will
result in a high degree of monitoring compliance and that as a result
there is a high probability of compliance and will be updated as
necessary.
(ii) The State must demonstrate that the initial monitoring plan is
enforceable under State law.
[54 FR 15188, Apr. 17, 1989, as amended at 54 FR 27539, June 29, 1989;
55 FR 25065, June 19, 1990; 56 FR 3595, Jan. 30, 1991; 56 FR 26563, June
7, 1991; 57 FR 31847, July 17, 1992; 59 FR 33864, June 30, 1994]
Sec. 142.17 Review of State programs and procedures for withdrawal of approved primacy programs.
(a)(1) At least annually the Administrator shall review, with
respect to each State determined to have primary enforcement
responsibility, the compliance of the State with the requirements set
forth in 40 CFR part 142, subpart B, and the approved State primacy
program. At the time of this review, the State shall notify the
Administrator of any State-initiated program changes (i.e., changes
other than those to adopt new or revised EPA regulations), and of any
transfer of all or part of its program from the approved State agency to
any other State agency.
(2) When, on the basis of the Administrator's review or other
available information, the Administrator determines that a State no
longer meets the requirements set forth in 40 CFR part 142, subpart B,
the Administrator shall initiate proceedings to withdraw primacy
approval. Among the factors the Administrator intends to consider as
relevant to this determination are the following, where appropriate:
whether
[[Page 449]]
the State has requested and has been granted, or is awaiting EPA's
decision on, an extension under Sec. 142.12(b)(2) of the deadlines for
meeting those requirements; and whether the State is taking corrective
actions that may have been required by the Administrator. The
Administrator shall notify the State in writing that EPA is initiating
primacy withdrawal proceedings and shall summarize in the notice the
information available that indicates that the State no longer meets such
requirements.
(3) The State notified pursuant to paragraph (a)(2) of this section
may, within 30 days of receiving the Administrator's notice, submit to
the Administrator evidence demonstrating that the State continues to
meet the requirements for primary enforcement responsibility.
(4) After reviewing the submission of the State, if any, made
pursuant to paragraph (a)(3) of this section, the Administrator shall
make a final determination either that the State no longer meets the
requirements of 40 CFR part 142, subpart B, or that the State continues
to meet those requirements, and shall notify the State of his or her
determination. Any final determination that the State no longer meets
the requirements of 40 CFR part 142, subpart B, shall not become
effective except as provided in Sec. 142.13.
(b) If a State which has primary enforcement responsibility decides
to relinquish that authority, it may do so by notifying the
Administrator in writing of the State's decision at least 90 days before
the effective date of the decision.
[54 FR 52140, Dec. 20, 1989, as amended at 60 FR 33661, June 28, 1995]
Sec. 142.18 EPA review of State monitoring determinations.
(a) A Regional Administrator may annul a State monitoring
determination for the types of determinations identified in
Secs. 141.23(b), 141.23(c), 141.24(f), 141.24(h), and 141.40(n) in
accordance with the procedures in paragraph (b) of this section.
(b) When information available to a Regional Administrator, such as
the results of an annual review, indicate a State determination fails to
apply the standards of the approved State program, he may propose to
annul the State monitoring determination by sending the State and the
affected PWS a draft Rescission Order. The draft order shall:
(1) Identify the PWS, the State determination, and the provisions at
issue;
(2) Explain why the State determination is not in compliance with
the State program and must be changed; and
(3) Describe the actions and terms of operation the PWS will be
required to implement.
(c) The State and PWS shall have 60 days to comment on the draft
Rescission Order.
(d) The Regional Administrator may not issue a Rescission Order to
impose conditions less stringent than those imposed by the State.
(e) The Regional Administrator shall also provide an opportunity for
comment upon the draft Rescission Order, by
(1) Publishing a notice in a newspaper in general circulation in
communities served by the affected system; and
(2) Providing 30 days for public comment on the draft order.
(f) The State shall demonstrate that the determination is
reasonable, based on its approved State program.
(g) The Regional Administrator shall decide within 120 days after
issuance of the draft Rescission Order to:
(1) Issue the Rescission Order as drafted;
(2) Issue a modified Rescission Order; or
(3) Cancel the Rescission Order.
(h) The Regional Administrator shall set forth the reasons for his
decision, including a responsiveness summary addressing significant
comments from the State, the PWS and the public.
(i) The Regional Administrator shall send a notice of his final
decision to the State, the PWS and all parties who commented upon the
draft Rescission Order.
(j) The Rescission Order shall remain in effect until cancelled by
the Regional Administrator. The Regional Administrator may cancel a
Rescission
[[Page 450]]
Order at any time, so long as he notifies those who commented on the
draft order.
(k) The Regional Administrator may not delegate the signature
authority for a final Rescission Order or the cancellation of an order.
(l) Violation of the actions, or terms of operation, required by a
Rescission Order is a violation of the Safe Drinking Water Act.
[56 FR 3595, Jan. 30, 1991]
Sec. 142.19 EPA review of State implementation of national primary drinking water regulations for lead and copper.
(a) Pursuant to the procedures in this section, the Regional
Administrator may review state determinations establishing corrosion
control or source water treatment requirements for lead or copper and
may issue an order establishing federal treatment requirements for a
public water system pursuant to Sec. 141.82 (d) and (f) and
Sec. 141.83(b) (2) and (4) where the Regional Administrator finds that:
(1) A State has failed to issue a treatment determination by the
applicable deadline;
(2) A State has abused its discretion in making corrosion control or
source water treatment determinations in a substantial number of cases
or in cases affecting a substantial population, or
(3) The technical aspects of State's determination would be
indefensible in an expected federal enforcement action taken against a
system.
(b) If the Regional Administrator determines that review of state
determination(s) under this section may be appropriate, he shall request
the State to forward to EPA the state determination and all information
that was considered by the State in making its determination, including
public comments, if any, within 60 days of the Regional Adminstrator's
request.
(c) Proposed review of state determinations:
(1) Where the Regional Administrator finds that review of a state
determination under paragraph (a) of this section is appropriate, he
shall issue a proposed review order which shall:
(i) Identify the public water system(s) affected, the State
determination being reviewed and the provisions of state and/or federal
law at issue;
(ii) Identify the determination that the State failed to carry out
by the applicable deadline, or identify the particular provisions of the
State determination which, in the Regional Administrator's judgment,
fail to carry out properly applicable treatment requirements, and
explain the basis for the Regional Administrator's conclusion;
(iii) Identify the treatment requirements which the Regional
Administrator proposes to apply to the affected system(s), and explain
the basis for the proposed requirements;
(iv) Request public comment on the proposed order and the supporting
record.
(2) The Regional Administrator shall provide notice of the proposed
review order by:
(i) Mailing the proposed order to the affected public water
system(s), the state agency whose order is being reviewed, and any other
parties of interest known to the Regional Administrator; and
(ii) Publishing a copy of the proposed order in a newspaper of
general circulation in the affected communities.
(3) The Regional Administrator shall make available for public
inspection during the comment period the record supporting the proposed
order, which shall include all of the information submitted by the State
to EPA under paragraph (b) of this section, all other studies,
monitoring data and other information considered by the Agency in
developing the proposed order.
(d) Final review order
(1) Based upon review of all information obtained regarding the
proposed review order, including public comments, the Regional
Administrator shall issue a final review order within 120 days after
issuance of the proposed order which affirms, modifies, or withdraws the
proposed order. The Regional Administrator may extend the time period
for issuing the final order for good cause. If the final order modifies
or withdraws the proposed order, the final order shall explain the
reasons supporting the change.
[[Page 451]]
(2) The record of the final order shall consist of the record
supporting the proposed order, all public comments, all other
information considered by the Regional Administrator in issuing the
final order and a document responding to all significant public comments
submitted on the proposed order. If new points are raised or new
material supplied during the public comment period, the Regional
Administrator may support the responses on those matters by adding new
materials to the record. The record shall be complete when the final
order is issued.
(3) Notice of the final order shall be provided by mailing the final
order to the affected system(s), the State, and all parties who
commented on the proposed order.
(4) Upon issuance of the final order, its terms constitute
requirements of the national primary drinking water regulation for lead
and/or copper until such time as the Regional Administrator issues a new
order (which may include recision of the previous order) pursuant to the
procedures in this section. Such requirements shall supersede any
inconsistent treatment requirements established by the State pursuant to
the national primary drinking water regulations for lead and copper.
(5) The Regional Administrator may not issue a final order to impose
conditions less stringent than those imposed by the State.
(e) The Regional Administrator may not delegate authority to sign
the final order under this section.
(f) Final action of the Regional Administrator under paragraph (d)
of this section shall constitute action of the Administrator for
purposes of 42 U.S.C. Sec. 300j-7(a)(2).
[56 FR 26563, June 7, 1991]
Subpart C--Review of State-Issued Variances and Exemptions
Sec. 142.20 State-issued variances and exemptions.
States with primary enforcement responsibility may issue variances
and exemptions from the requirements of primary drinking water
regulations under conditions and in a manner which are not less
stringent than the conditions under which, and the manner in which,
variances and exemptions may be granted under sections 1415 and 1416 of
the Act. In States that do not have primary enforcement responsibility,
variances and exemptions from the requirements of applicable national
primary drinking water regulations may be granted by the Administrator
pursuant to subparts E and F.
Sec. 142.21 State consideration of a variance or exemption request.
A State with primary enforcement responsibility shall act on any
variance or exemption request submitted to it, within 90 days of receipt
of the request.
Sec. 142.22 Review of State variances, exemptions and schedules.
(a) Not later than 18 months after the effective date of the interim
national primary drinking water regulations the Administrator shall
complete a comprehensive review of the variances and exemptions granted
(and schedules prescribed pursuant thereto) by the States with primary
enforcement responsibility during the one-year period beginning on such
effective date. The Administrator shall conduct such subsequent reviews
of exemptions and schedules as he deems necessary to carry out the
purposes of this title, but at least one review shall be completed
within each 3-year period following the completion of the first review
under this paragraph.
(b) Notice of a proposed review shall be published in the Federal
Register. Such notice shall (1) provide information respecting the
location of data and other information respecting the variances and
exemptions to be reviewed (including data and other information
concerning new scientific matters bearing on such variances and
exemptions), and (2) advise of the opportunity to submit comments on the
variances and exemptions reviewed and on the need for continuing them.
Upon completion of any such review, the Administrator shall publish in
the Federal Register the results of his review, together with findings
responsive to any comments submitted in connection with such review.
[[Page 452]]
Sec. 142.23 Notice to State.
(a) If the Administrator finds that a State has, in a substantial
number of instances, abused its discretion in granting variances or
exemptions under section 1415(a) or section 1416(a) of the Act or failed
to prescribe schedules in accordance with section 1415(a) or section
1416(b) of the Act, he shall notify the State of his findings. Such
notice shall:
(1) Identify each public water system for which the finding was
made;
(2) Specify the reasons for the finding; and
(3) As appropriate, propose revocation of specific variances or
exemptions, or propose revised schedules for specific public water
systems.
(b) The Administrator shall also notify the State of a public
hearing to be held on the provisions of the notice required by paragraph
(a) of this section. Such notice shall specify the time and location for
the hearing. If, upon notification of a finding by the Administrator,
the State takes adequate corrective action, the Administrator shall
rescind his notice to the State of a public hearing, provided that the
Administrator is notified of the corrective action prior to the hearing.
(c) The Administrator shall publish notice of the public hearing in
the Federal Register and in a newspaper or newspapers of general
circulation in the involved State including a summary of the findings
made pursuant to paragraph (a) of this section, a statement of the time
and location for the hearing, and the address and telephone number of an
office at which interested persons may obtain further information
concerning the hearing.
(d) Hearings convened pursuant to paragraphs (b) and (c) of this
section shall be conducted before a hearing officer to be designated by
the Administrator. The hearing shall be conducted by the hearing officer
in an informal, orderly and expeditious manner. The hearing officer
shall have authority to call witnesses, receive oral and written
testimony and take such other action as may be necessary to assure the
fair and efficient conduct of the hearing. Following the conclusion of
the hearing, the hearing officer shall forward the record of the hearing
to the Administrator.
(e) Within 180 days after the date notice is given pursuant to
paragraph (b) of this section, the Administrator shall:
(1) Rescind the finding for which the notice was given and promptly
notify the State of such rescission, or
(2) Promulgate with any modifications as appropriate such revocation
and revised schedules proposed in such notice and promptly notify the
State of such action.
(f) A revocation or revised schedule shall take effect 90 days after
the State is notified under paragraph (e)(2) of this section.
Sec. 142.24 Administrator's rescission.
If, upon notification of a finding by the Administrator under
Sec. 142.23, the State takes adequate corrective action before the
effective date of the revocation or revised schedule, the Administrator
shall rescind the application of his finding to that variance, exemption
or schedule.
Subpart D--Federal Enforcement
Sec. 142.30 Failure by State to assure enforcement.
(a) The Administrator shall notify a State and the appropriate
supplier of water whenever he finds during a period in which the State
has primary enforcement responsibility for public water systems that a
public water system within such State is not in compliance with any
primary drinking water regulation contained in part 141 of this chapter
or with any schedule or other requirements imposed pursuant to a
variance or exemption granted under section 1415 or 1416 of the Act:
Provided, That the State will be deemed to have been notified of a
violation referred to in a report submitted by the State.
(b) The Administrator shall provide advice and technical assistance
to such State and public water system as may be appropriate to bring the
system into compliance by the earliest feasible time.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
[[Page 453]]
Sec. 142.31 [Reserved]
Sec. 142.32 Petition for public hearing.
(a) If the Administrator makes a finding of noncompliance pursuant
to Sec. 142.30 with respect to a public water system in a State which
has primary enforcement responsibility, the Administrator may, for the
purpose of assisting that State in carrying out such responsibility and
upon the petition of such State or public water system or persons served
by such system, hold, after appropriate notice, public hearings for the
purpose of gathering information as described in Sec. 142.33.
(b) A petition for a public hearing pursuant to paragraph (a) of
this section shall be filed with the Administrator and shall include the
following information:
(1) The name, address and telephone number of the individual or
other entity requesting a hearing.
(2) If the petition is filed by a person other than the State or
public water system, a statement that the person is served by the
system.
(3) A brief statement of information that the requesting person
intends to submit at the requested hearing.
(4) The signature of the individual submitting the petition; or, if
the petition is filed on behalf of a State, public water system or other
entity, the signature of a responsible official of the State or other
entity.
Sec. 142.33 Public hearing.
(a) If the Administrator grants the petition for public hearing, he
shall give appropriate public notice of such hearing. Such notice shall
be by publication in the Federal Register and in a newspaper of general
circulation or by other appropriate communications media covering the
area served by such public water system.
(b) A hearing officer designated by the Administrator shall gather
during the public hearing information from technical or other experts,
Federal, State, or other public officials, representatives of the public
water system, persons served by the system, and other interested persons
on:
(1) The ways in which the system can within the earliest feasible
time be brought into compliance, and
(2) The means for the maximum feasible protection of the public
health during any period in which such system is not in compliance.
(c) On the basis of the hearing and other available information the
Administrator shall issue recommendations which shall be sent to the
State and public water system and shall be made available to the public
and communications media.
Sec. 142.34 Entry and inspection of public water systems.
(a) Any supplier of water or other person subject to a national
primary drinking water regulation shall, at any time, allow the
Administrator, or a designated representative of the Administrator, upon
presenting appropriate credentials and a written notice of inspection,
to enter any establishment, facility or other property of such supplier
or other person to determine whether such supplier or other person has
acted or is acting in compliance with the requirements of the Act or
subchapter D of this chapter. Such inspection may include inspection, at
reasonable times, of records, files, papers, processes, controls and
facilities, or testing of any feature of a public water system,
including its raw water source.
(b) Prior to entry into any establishment, facility or other
property within a State which has primary enforcement responsibility,
the Administrator shall notify, in writing, the State agency charged
with responsibility for safe drinking water of his intention to make
such entry and shall include in his notification a statement of reasons
for such entry. The Administrator shall, upon a showing by the State
agency that such an entry will be detrimental to the administration of
the State's program of primary enforcement responsibility, take such
showing into consideration in determining whether to make such entry.
The Administrator shall in any event offer the State agency the
opportunity of having a representative accompany the Administrator or
his representative on such entry.
[[Page 454]]
(c) No State agency which receives notice under paragraph (b) of
this section may use the information contained in the notice to inform
the person whose property is proposed to be entered of the proposed
entry; if a State so uses such information, notice to the agency under
paragraph (b) of this section is not required for subsequent inspections
of public water systems until such time as the Administrator determines
that the agency has provided him satisfactory assurances that it will no
longer so use information contained in a notice received under paragraph
(b) of this section.
Subpart E--Variances Issued by the Administrator
Sec. 142.40 Requirements for a variance.
(a) The Administrator may grant one or more variances to any public
water system within a State that does not have primary enforcement
responsibility from any requirement respecting a maximum contaminant
level of an applicable national primary drinking water regulation upon a
finding that:
(1) Because of characteristics of the raw water sources which are
reasonably available to the system, the system cannot meet the
requirements respecting the maximum contaminant levels of such drinking
water regulations despite application of the best technology, treatment
techniques, or other means, which the Administrator finds are generally
available (taking costs into consideration); and
(2) The granting of a variance will not result in an unreasonable
risk to the health of persons served by the system.
(b) The Administrator may grant one or more variances to any public
water system within a State that does not have primary enforcement
responsibility from any requirement of a specified treatment technique
of an applicable national primary drinking water regulation upon a
finding that the public water system applying for the variance has
demonstrated that such treatment technique is not necessary to protect
the health of persons because of the nature of the raw water source of
such system.
Sec. 142.41 Variance request.
A supplier of water may request the granting of a variance pursuant
to this subpart for a public water system within a State that does not
have primary enforcement responsibility by submitting a request for a
variance in writing to the Administrator. Suppliers of water may submit
a joint request for variances when they seek similar variances under
similar circumstances. Any written request for a variance or variances
shall include the following information:
(a) The nature and duration of variance requested.
(b) Relevant analytical results of water quality sampling of the
system, including results of relevant tests conducted pursuant to the
requirements of the national primary drinking water regulations.
(c) For any request made under Sec. 142.40(a):
(1) Explanation in full and evidence of the best available treatment
technology and techniques.
(2) Economic and legal factors relevant to ability to comply.
(3) Analytical results of raw water quality relevant to the variance
request.
(4) A proposed compliance schedule, including the date each step
toward compliance will be achieved. Such schedule shall include as a
minimum the following dates:
(i) Date by which arrangement for alternative raw water source or
improvement of existing raw water source will be completed.
(ii) Date of initiation of the connection of the alternative raw
water source or improvement of existing raw water source.
(iii) Date by which final compliance is to be achieved.
(5) A plan for the provision of safe drinking water in the case of
an excessive rise in the contaminant level for which the variance is
requested.
(6) A plan for additional interim control measures during the
effective period of variance.
(d) For any request made under Sec. 142.40(b), a statement that the
system will perform monitoring and other reasonable requirements
prescribed by the
[[Page 455]]
Administrator as a condition to the variance.
(e) Other information, if any, believed to be pertinent by the
applicant.
(f) Such other information as the Administrator may require.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.42 Consideration of a variance request.
(a) The Administrator shall act on any variance request submitted
pursuant to Sec. 142.41 within 90 days of receipt of the request.
(b) In his consideration of whether the public water system is
unable to comply with a contaminant level required by the national
primary drinking water regulations because of the nature of the raw
water source, the Administrator shall consider such factors as the
following:
(1) The availability and effectiveness of treatment methods for the
contaminant for which the variance is requested.
(2) Cost and other economic considerations such as implementing
treatment, improving the quality of the source water or using an
alternate source.
(c) A variance may only be issued to a system after the system's
application of the best technology, treatment techniques, or other
means, which the Administrator finds are available (taking costs into
consideration).
(d) In his consideration of whether a public water system should be
granted a variance to a required treatment technique because such
treatment is unnecessary to protect the public health, the Administrator
shall consider such factors as the following:
(1) Quality of the water source including water quality data and
pertinent sources of pollution.
(2) Source protection measures employed by the public water system.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.43 Disposition of a variance request.
(a) If the Administrator decides to deny the application for a
variance, he shall notify the applicant of his intention to issue a
denial. Such notice shall include a statement of reasons for the
proposed denial, and shall offer the applicant an opportunity to
present, within 30 days of receipt of the notice, additional information
or argument to the Administrator. The Administrator shall make a final
determination on the request within 30 days after receiving any such
additional information or argument. If no additional information or
argument is submitted by the applicant the application shall be denied.
(b) If the Administrator proposes to grant a variance request
submitted pursuant to Sec. 142.41, he shall notify the applicant of his
decision in writing. Such notice shall identify the variance, the
facility covered, and shall specify the period of time for which the
variance will be effective.
(1) For the type of variance specified in Sec. 142.40(a) such notice
shall provide that the variance will be terminated when the system comes
into compliance with the applicable regulation, and may be terminated
upon a finding by the Administrator that the system has failed to comply
with any requirements of a final schedule issued pursuant to
Sec. 142.44.
(2) For the type of variance specified in Sec. 142.40(b) such notice
shall provide that the variance may be terminated at any time upon a
finding that the nature of the raw water source is such that the
specified treatment technique for which the variance was granted is
necessary to protect the health of persons or upon a finding that the
public water system has failed to comply with monitoring and other
requirements prescribed by the Administrator as a condition to the
granting of the variance.
(c) For a variance specified in Sec. 142.40(a)(1) the Administrator
shall propose a schedule for:
(1) Compliance (including increments of progress) by the public
water system with each contaminant level requirement covered by the
variance; and,
(2) Implementation by the public water system of such additional
control measures as the Administrator may require for each contaminant
covered by the variance.
(d) The proposed schedule for compliance shall specify dates by
which steps
[[Page 456]]
towards compliance are to be taken, including at the minimum, where
applicable:
(1) Date by which arrangement for an alternative raw water source or
improvement of existing raw water source will be completed.
(2) Date of initiation of the connection for the alternative raw
water source or improvement of the existing raw water source.
(3) Date by which final compliance is to be achieved.
(e) The proposed schedule may, if the public water system has no
access to an alternative raw water source, and can effect or anticipate
no adequate improvement of the existing raw water source, specify an
indefinite time period for compliance until a new and effective
treatment technology is developed at which time a new compliance
schedule shall be prescribed by the Administrator.
(f) The proposed schedule for implementation of additional interim
control measures during the period of variance shall specify interim
treatment techniques, methods and equipment, and dates by which steps
toward meeting the additional interim control measures are to be met.
(g) The schedule shall be prescribed by the Administrator at the
time of granting of the variance, subsequent to provision of opportunity
for hearing pursuant to Sec. 142.44.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.44 Public hearings on variances and schedules.
(a) Before a variance and schedule proposed by the Administrator
pursuant to Sec. 142.43 may take effect, the Administrator shall provide
notice and opportunity for public hearing on the variance and schedule.
A notice given pursuant to the preceding sentence may cover the granting
of more than one variance and a hearing held pursuant to such notice
shall include each of the variances covered by the notice.
(b) Public notice of an opportunity for hearing on a variance and
schedule shall be circulated in a manner designed to inform interested
and potentially interested persons of the proposed variance and
schedule, and shall include at least the following:
(1) Posting of a notice in the principal post office of each
municipality or area served by the public water system, and publishing
of a notice in a newspaper or newspapers of general circulation in the
area served by the public water system; and
(2) Mailing of a notice to the agency of the State in which the
system is located which is responsible for the State's water supply
program, and to other appropriate State or local agencies at the
Administrator's discretion.
(3) Such notice shall include a summary of the proposed variance and
schedule and shall inform interested persons that they may request a
public hearing on the proposed variance and schedule.
(c) Requests for hearing may be submitted by any interested person
other than a Federal agency. Frivolous or insubstantial requests for
hearing may be denied by the Administrator. Requests must be submitted
to the Administrator within 30 days after issuance of the public notices
provided for in paragraph (b) of this section. Such requests shall
include the following information:
(1) The name, address and telephone number of the individual,
organization or other entity requesting a hearing;
(2) A brief statement of the interest of the person making the
request in the proposed variance and schedule, and of information that
the requester intends to submit at such hearing;
(3) The signature of the individual making the request, or, if the
request is made on behalf of an organization or other entity, the
signature of a responsible official of the organization or other entity.
(d) The Administrator shall give notice in the manner set forth in
paragraph (b) of this section of any hearing to be held pursuant to a
request submitted by an interested person or on his own motion. Notice
of the hearing shall also be sent to the persons requesting the hearing,
if any. Notice of the hearing shall include a statement of the purpose
of the hearing, information regarding the time and location for the
hearing, and the address and telephone number of an office at which
[[Page 457]]
interested persons may obtain further information concerning the
hearing. At least one hearing location specified in the public notice
shall be within the involved State. Notice of hearing shall be given not
less than 15 days prior to the time scheduled for the hearing.
(e) A hearing convened pursuant to paragraph (d) of this section
shall be conducted before a hearing officer to be designated by the
Administrator. The hearing shall be conducted by the hearing officer in
an informal, orderly and expeditious manner. The hearing officer shall
have authority to call witnesses, receive oral and written testimony and
take such other action as may be necessary to assure the fair and
efficient conduct of the hearing. Following the conclusion of the
hearing, the hearing officer shall forward the record of the hearing to
the Administrator.
(f) The variance and schedule shall become effective 30 days after
notice of opportunity for hearing is given pursuant to paragraph (b) of
this section if no timely request for hearing is submitted and the
Administrator does not determine to hold a public hearing on his own
motion.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.45 Action after hearing.
Within 30 days after the termination of the public hearing held
pursuant to Sec. 142.44, the Administrator shall, taking into
consideration information obtained during such hearing and relevant
information, confirm, revise or rescind the proposed variance and
schedule.
[52 FR 20675, June 2, 1987]
Sec. 142.46 Alternative treatment techniques.
The Administrator may grant a variance from any treatment technique
requirement of a national primary drinking water regulation to a
supplier of water, whether or not the public water system for which the
variance is requested is located in a State which has primary
enforcement responsibility, upon a showing from any person that an
alternative treatment technique not included in such requirement is at
least as efficient in lowering the level of the contaminant with respect
to which such requirements was prescribed. A variance under this
paragraph shall be conditioned on the use of the alternative treatment
technique which is the basis of the variance.
Subpart F--Exemptions Issued by the Administrator
Sec. 142.50 Requirements for an exemption.
The Administrator may exempt any public water system within a State
that does not have primary enforcement responsibility from any
requirement respecting a maximum contaminant level or any treatment
technique requirement, or from both, of an applicable national primary
drinking water regulation upon a finding that:
(a) Due to compelling factors (which may include economic factors),
the public water system is unable to comply with such contaminant level
or treatment technique requirement;
(b) The public water system was in operation on the effective date
of such contaminant level or treatment technique requirement; and
(c) The granting of the exemption will not result in an unreasonable
risk to health.
Sec. 142.51 Exemption request.
A supplier of water may request the granting of an exemption
pursuant to this subpart for a public water system within a State that
does not have primary enforcement responsibility by submitting a request
for exemption in writing to the Administrator. Suppliers of water may
submit a joint request for exemptions when they seek similar exemptions
under similar circumstances. Any written request for an exemption or
exemptions shall include the following information:
(a) The nature and duration of exemption requested.
(b) Relevant analytical results of water quality sampling of the
system, including results of relevant tests conducted pursuant to the
requirements of
[[Page 458]]
the national primary drinking water regulations.
(c) Explanation of the compelling factors such as time or economic
factors which prevent such system from achieving compliance.
(d) Other information, if any, believed by the applicant to be
pertinent to the application.
(e) A proposed compliance schedule, including the date when each
step toward compliance will be achieved.
(f) Such other information as the Administrator may require.
Sec. 142.52 Consideration of an exemption request.
(a) The Administrator shall act on any exemption request submitted
pursuant to Sec. 142.51 within 90 days of receipt of the request.
(b) In his consideration of whether the public water system is
unable to comply due to compelling factors, the Administrator shall
consider such factors as the following:
(1) Construction, installation, or modification of the treatment
equipment or systems.
(2) The time needed to put into operation a new treatment facility
to replace an existing system which is not in compliance.
(3) Economic feasibility of compliance.
Sec. 142.53 Disposition of an exemption request.
(a) If the Administrator decides to deny the application for an
exemption, he shall notify the applicant of his intention to issue a
denial. Such notice shall include a statement of reasons for the
proposed denial, and shall offer the applicant an opportunity to
present, within 30 days of receipt of the notice, additional information
or argument to the Administrator. The Administrator shall make a final
determination on the request within 30 days after receiving any such
additional information or argument. If no additional information or
argument is submitted by the applicant, the application shall be denied.
(b) If the Administrator grants an exemption request submitted
pursuant to Sec. 142.51, he shall notify the applicant of his decision
in writing. Such notice shall identify the facility covered, and shall
specify the termination date of the exemption. Such notice shall provide
that the exemption will be terminated when the system comes into
compliance with the applicable regulation, and may be terminated upon a
finding by the Administrator that the system has failed to comply with
any requirements of a final schedule issued pursuant to Sec. 142.55.
(c) The Administrator shall propose a schedule for:
(1) Compliance (including increments of progress) by the public
water system with each contaminant level requirement and treatment
technique requirement covered by the exemption; and
(2) Implementation by the public water system of such control
measures as the Administrator may require for each contaminant covered
by the exemption.
(d) The schedule shall be prescribed by the Administrator at the
time the exemption is granted, subsequent to provision of opportunity
for hearing pursuant to Sec. 142.54.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.54 Public hearings on exemption schedules.
(a) Before a schedule proposed by the Administrator pursuant to
Sec. 142.53 may take effect, the Administrator shall provide notice and
opportunity for public hearing on the schedule. A notice given pursuant
to the preceding sentence may cover the proposal of more than one such
schedule and a hearing held pursuant to such notice shall include each
of the schedules covered by the notice.
(b) Public notice of an opportunity for hearing on an exemption
schedule shall be circulated in a manner designed to inform interested
and potentially interested persons of the proposed schedule, and shall
include at least the following:
(1) Posting of a notice in the principal post office of each
municipality or area served by the public water system, and publishing
of a notice in a newspaper or newspapers of general circulation in the
area served by the public water system.
[[Page 459]]
(2) Mailing of a notice to the agency of the State in which the
system is located which is responsible for the State's water supply
program and to other appropriate State or local agencies at the
Administrator's discretion.
(3) Such notices shall include a summary of the proposed schedule
and shall inform interested persons that they may request a public
hearing on the proposed schedule.
(c) Requests for hearing may be submitted by any interested person
other than a Federal agency. Frivolous or insubstantial requests for
hearing may be denied by the Administrator. Requests must be submitted
to the Administrator within 30 days after issuance of the public notices
provided for in paragraph (b) of this section. Such requests shall
include the following information:
(1) The name, address and telephone number of the individual,
organization or other entity requesting a hearing;
(2) A brief statement of the interest of the person making the
request in the proposed schedule and of information that the requesting
person intends to submit at such hearing; and
(3) The signature of the individual making the request, or, if the
request is made on behalf of an organization or other entity, the
signature of a responsibile official of the organization or other
entity.
(d) The Administrator shall give notice in the manner set forth in
paragraph (b) of this section of any hearing to be held pursuant to a
request submitted by an interested person or on his own motion. Notice
of the hearing shall also be sent to the person requesting the hearing,
if any. Notice of the hearing shall include a statement of the purpose
of the hearing, information regarding the time and location of the
hearing, and the address and telephone number of an office at which
interested persons may obtain further information concerning the
hearing. At least one hearing location specified in the public notice
shall be within the involved State. Notice of the hearing shall be given
not less than 15 days prior to the time scheduled for the hearing.
(e) A hearing convened pursuant to paragraph (d) of this section
shall be conducted before a hearing officer to be designated by the
Administrator. The hearing shall be conducted by the hearing officer in
an informal, orderly and expeditious manner. The hearing officer shall
have authority to call witnesses, receive oral and written testimony and
take such action as may be necessary to assure the fair and efficient
conduct of the hearing. Following the conclusion of the hearing, the
hearing officer shall forward the record of the hearing to the
Administrator.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.55 Final schedule.
(a) Within 30 days after the termination of the public hearing
pursuant to Sec. 142.54, the Administrator shall, taking into
consideration information obtained during such hearing, revise the
proposed schedule as necessary and prescribe the final schedule for
compliance and interim measures for the public water system granted an
exemption under Sec. 142.52.
(b) Such schedule must require compliance as follows:
(1) In the case of an exemption granted with respect to a
contaminant level or treatment technique requirement prescribed by the
national primary drinking water regulations promulgated under section
1421(a) of the Safe Drinking Water Act, not later than June 19, 1987,
and
(2) In the case of an exemption granted with respect to a
contaminant level or treatment technique requirement prescribed by
national primary drinking water regulations, other than a regulation
referred to in section 1412(a), 12 months after the issuance of the
exemption.
(c) If the public water system has entered into an enforceable
agreement to become a part of a regional public water system, as
determined by the Administrator, such schedule shall require compliance
by the public water system with each contaminant level and treatment
technique requirement prescribed by:
(1) Interim national primary drinking water regulations pursuant to
part 141 of this chapter, by no later than January 1, 1983; and
[[Page 460]]
(2) Revised national primary drinking water regulations pursuant to
part 141 of this chapter, by no later than nine years after the
effective date of such regulations.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.56 Extension of date for compliance.
(a) The final date for compliance provided in any schedule in the
case of any exemption may be extended by the State (in the case of a
State which has primary enforcement responsibility) or by the
Administrator (in any other case) for a period not to exceed 3 years
after the date of the issuance of the exemption if the public water
system establishes that:
(1) The system cannot meet the standard without capital improvements
which cannot be completed within the period of such exemption;
(2) In the case of a system which needs financial assistance for the
necessary improvements, the system has entered into an agreement to
obtain such financial assistance; or
(3) The system has entered into an enforceable agreement to become a
part of a regional public water system; and the system is taking all
practicable steps to meet the standard.
(b) In the case of a system which does not serve more than 500
service connections and which needs financial assistance for the
necessary improvements, an exemption granted under paragraph (a) (1) or
(2) may be renewed for one or more additional 2-year periods if the
system establishes that it is taking all practicable steps to meet the
requirements of paragraph (a) of this section.
[52 FR 20676, June 2, 1987]
Sec. 142.57 Bottled water, point-of-use, and point-of-entry devices.
(a) A State may require a public water system to use bottled water,
point-of-use devices, or point-of-entry devices as a condition of
granting an exemption from the requirements of Secs. 141.61 (a) and (c),
and Sec. 141.62 of this chapter.
(b) Public water systems using bottled water as a condition of
obtaining an exemption from the requirements of Secs. 141.61 (a) and (c)
and Sec. 141.62(b) must meet the requirements in Sec. 142.62(g).
(c) Public water systems that use point-of-use or point-of-entry
devices as a condition for receiving an exemption must meet the
requirements in Sec. 141.62(h).
[56 FR 3596, Jan. 30, 1991, as amended at 56 FR 30280, July 1, 1991]
Subpart G--Identification of Best Technology, Treatment Techniques or
Other Means Generally Available
Sec. 142.60 Variances from the maximum contaminant level for total trihalomethanes.
(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act,
hereby identifies the following as the best technology, treatment
techiques or other means generally available for achieving compliance
with the maximum contaminant level for total trihalomethanes
(Sec. 141.12(c)):
(1) Use of chloramines as an alternate or supplemental disinfectant
or oxidant.
(2) Use of chlorine dioxide as an alternate or supplemental
disinfectant or oxidant.
(3) Improved existing clarification for THM precursor reduction.
(4) Moving the point of chlorination to reduce TTHM formation and,
where necessary, substituting for the use of chlorine as a pre-oxidant
chloramines, chlorine dioxide or potassium permanganate.
(5) Use of powdered activated carbon for THM precursor or TTHM
reduction seasonally or intermittently at dosages not to exceed 10 mg/L
on an annual average basis.
(b) The Administrator in a state that does not have primary
enforcement responsibility or a state with primary enforcement
responsibility (primacy state) that issues variances shall require a
community water system to install and/or use any treatment method
identified in Sec. 142.60(a) as a condition for granting a variance
unless the Administrator or primacy state determines that such treatment
method identified in Sec. 142.60(a) is not available and effective for
TTHM control for the
[[Page 461]]
system. A treatment method shall not be considered to be ``available and
effective'' for an individual system if the treatment method would not
be technically appropriate and technically feasible for that system or
would only result in a marginal reduction in TTHM for the system. If,
upon application by a system for a variance, the Administrator or
primacy state that issues variances determines that none of the
treatment methods identified in Sec. 142.60(a) is available and
effective for the system, that system shall be entitled to a variance
under the provisions of section 1415(a)(1)(A) of the Act. The
Administrator's or primacy state's determination as to the availability
and effectiveness of such treatment methods shall be based upon studies
by the system and other relevant information. If a system submits
information intending to demonstrate that a treatment method is not
available and effective for TTHM control for that system, the
Administrator or primacy state shall make a finding whether this
information supports a decision that such treatment method is not
available and effective for that system before requiring installation
and/or use of such treatment method.
(c) Pursuant to Sec. 142.43 (c) through (g) or corresponding state
regulations, the Administrator or primacy state that issues variances
shall issue a schedule of compliance that may require the system being
granted the variance to examine the following treatment methods (1) to
determine the probability that any of these methods will significantly
reduce the level of TTHM for that system, and (2) if such probability
exists, to determine whether any of these methods are technically
feasible and economically reasonable, and that the TTHM reductions
obtained will be commensurate with the costs incurred with the
installation and use of such treatment methods for that system:
Introduction of off-line water storage for THM precursor reduction.
Aeration for TTHM reduction, where geographically and
environmentally appropriate.
Introduction of clarification where not currently practiced.
Consideration of alternative sources of raw water.
Use of ozone as an alternate or supplemental disinfectant or
oxidant.
(d) If the Administrator or primacy state that issues variances
determines that a treatment method identified in Sec. 142.60(c) is
technically feasible, economically reasonable and will achieve TTHM
reductions commensurate with the costs incurred with the installation
and/or use of such treatment method for the system, the Administrator or
primacy state shall require the system to install and/or use that
treatment method in connection with a compliance schedule issued under
the provisions of section 1415(a)(1)(A) of the Act. The Administrator's
or primacy state's determination shall be based upon studies by the
system and other relevant information. In no event shall the
Administrator require a system to install and/or use a treatment method
not described in Sec. 142.60 (a) or (c) to obtain or maintain a variance
from the TTHM Rule or in connection with any variance compliance
schedule.
[48 FR 8414, Feb. 28, 1983]
Sec. 142.61 Variances from the maximum contaminant level for fluoride.
(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act,
hereby identifies the following as the best technology, treatment
techniques or other means generally available for achieving compliance
with the Maximum Contaminant Level for fluoride.
(1) Activated alumina absorption, centrally applied
(2) Reverse osmosis, centrally applied
(b) The Administrator in a state that does not have primary
enforcement responsibility or a state with primary enforcement
responsibility (primacy state) that issues variances shall require a
community water system to install and/or use any treatment method
identified in Sec. 142.61(a) as a condition for granting a variance
unless the Administrator or the primacy state determines that such
treatment method identified in Sec. 142.61(a) as a condition for
granting a variance is not available and effective for fluoride control
for the system. A treatment method shall not be considered to be
``available and effective'' for an individual system if the treatment
method would not be
[[Page 462]]
technically appropriate and technically feasible for that system. If,
upon application by a system for a variance, the Administrator or
primacy state that issues variances determines that none of the
treatment methods identified in Sec. 142.61(a) are available and
effective for the system, that system shall be entitled to a variance
under the provisions of section 1415(a)(1)(A) of the Act. The
Administrator's or primacy state's determination as to the availability
and effectiveness of such treatment methods shall be based upon studies
by the system and other relevant information. If a system submits
information to demonstrate that a treatment method is not available and
effective for fluoride control for that system, the Administrator or
primacy state shall make a finding whether this information supports a
decision that such treatment method is not available and effective for
that system before requiring installation and/or use of such treatment
method.
(c) Pursuant to Sec. 142.43(c)-(g) or corresponding state
regulations, the Administrator or primacy state that issues variances
shall issue a schedule of compliance that may require the system being
granted the variance to examine the following treatment methods (1) to
determine the probability that any of these methods will significantly
reduce the level of fluoride for that system, and (2) if such
probability exists, to determine whether any of these methods are
technically feasible and economically reasonable, and that the fluoride
reductions obtained will be commensurate with the costs incurred with
the installation and use of such treatment methods for that system:
(1) Modification of lime softening;
(2) Alum coagulation;
(3) Electrodialysis;
(4) Anion exchange resins;
(5) Well field management;
(6) Alternate source;
(7) Regionalization.
(d) If the Administrator or primary state that issues variances
determines that a treatment method identified in Sec. 142.61(c) or other
treatment method is technically feasible, economically reasonable, and
will achieve fluoride reductions commensurate with the costs incurred
with the installation and/or use of such treatment method for the
system, the Administrator or primacy state shall require the system to
install and/or use that treatment method in connection with a compliance
schedule issued under the provisions of section 1415(a)(1)(A) of the
Act. The Administrator's or primacy state's determination shall be based
upon studies by the system and other relevant information.
[51 FR 11411, Apr. 2, 1986]
Sec. 142.62 Variances and exemptions from the maximum contaminant levels for organic and inorganic chemicals.
(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act
hereby identifies the technologies listed in paragraphs (a)(1) through
(a)(54) of this section as the best technology, treatment techniques, or
other means available for achieving compliance with the maximum
contaminant levels for organic chemicals listed in Secs. 141.61 (a) and
(c):
----------------------------------------------------------------------------------------------------------------
Best available technologies
Contaminant ---------------------------------------------------------------------------
PTA 1 GAC 2 OX 3
----------------------------------------------------------------------------------------------------------------
(1) Benzene......................... X X .......................
(2) Carbon tetrachloride............ X X .......................
(3) 1,2-Dichloroethane.............. X X .......................
(4) Trichloroethylene............... X X .......................
(5) para-Dichlorobenzene............ X X .......................
(6) 1,1-Dichloroethylene............ X X .......................
(7) 1,1,1-Trichloroethane........... X X .......................
(8) Vinyl chloride.................. X ....................... .......................
(9) cis-1,2-Dichloroethylene........ X X .......................
(10) 1,2-Dichloropropane............ X X .......................
(11) Ethylbenzene................... X X .......................
(12) Monochlorobenzene.............. X X .......................
(13) o-Dichlorobenzene.............. X X .......................
(14) Styrene........................ X X .......................
[[Page 463]]
(15) Tetrachloroethylene............ X X .......................
(16) Toluene........................ X X .......................
(17) trans-1,2-Dichloroethylene..... X X .......................
(18) Xylense (total)................ X X .......................
(19) Alachlor....................... ........................ X .......................
(20) Aldicarb....................... ........................ X .......................
(21) Aldicarb sulfoxide............. ........................ X .......................
(22) Aldicarb sulfone............... ........................ X .......................
(23) Atrazine....................... ........................ X .......................
(24) Carbofuran..................... ........................ X .......................
(25) Chlordane...................... ........................ X .......................
(26) Dibromochloropropane........... X X .......................
(27) 2,4-D.......................... ........................ X .......................
(28) Ethylene dibromide............. X X .......................
(29) Heptachlor..................... ........................ X .......................
(30) Heptachlor epoxide............. ........................ X .......................
(31) Lindane........................ ........................ X .......................
(32) Methoxychlor................... ........................ X .......................
(33) PCBs........................... ........................ X .......................
(34) Pentachlorophenol.............. ........................ X .......................
(35) Toxaphene...................... ........................ X .......................
(36) 2,4,5-TP....................... ........................ X .......................
(37) Benzo[a]pyrene................. ........................ X .......................
(38) Dalapon........................ ........................ X .......................
(39) Dichloromethane................ X ....................... .......................
(40) Di(2-ethylhexyl)adipate........ X X .......................
(41) Di(2-ethylhexyl)phthalate...... ........................ X .......................
(42) Dinoseb........................ ........................ X .......................
(43) Diquat......................... ........................ X .......................
(44) Endothall...................... ........................ X .......................
(45) Endrin......................... ........................ X .......................
(46) Glyphosate..................... ........................ ....................... X
(47) Hexachlorobenzene.............. ........................ X .......................
(48) Hexachlorocyclopentadiene...... X X .......................
(49) Oxamyl (Vydate)................ ........................ X .......................
(50) Picloram....................... ........................ X .......................
(51) Simazine....................... ........................ X .......................
(52) 1,2,4-Trichlorobenzene......... X X .......................
(53) 1,1,2-Trichloroethane.......... X X .......................
(54) 2,3,7,8-TCDD (Dioxin).......... ........................ X .......................
----------------------------------------------------------------------------------------------------------------
1 Packed Tower Aeration
2 Granular Activated Carbon
3 Oxidation (Chlorination or Ozonation)
(b) The Administrator, pursuant to section 1415(a)(1)(A) of the Act,
hereby identifies the following as the best technology, treatment
techniques, or other means available for achieving compliance with the
maximum contaminant levels for the inorganic chemicals listed in
Sec. 141.62:
BAT for Inorganic Compounds Listed in Sec. 141.62(B)
------------------------------------------------------------------------
Chemical name BAT(s)
------------------------------------------------------------------------
Antimony................................................ 2,7
Asbestos................................................ 2,3,8
Barium.................................................. 5,6,7,9
Beryllium............................................... 1,2,5,6,7
Cadmium................................................. 2,5,6,7
Chromium................................................ 2,5,6 2,7
Cyanide................................................. 5,7,10
Mercury................................................. 2 1,4,6 1,7 1
Nickel.................................................. 5,6,7
Nitrite................................................. 5,7,9
Nitrate................................................. 5,7
Selenium................................................ 1,2 3,6,7,9
Thallium................................................ 1,5
------------------------------------------------------------------------
1 BAT only if influent Hg concentrations 10g/1.
2 BAT for Chromium III only.
3 BAT for Selenium IV only.
Key to BATS in Table
1=Activated Alumina
2=Coagulation/Filtration (not BAT for systems <500 service connections)
3=Direct and Diatomite Filtration
4=Granular Activated Carbon
5=Ion Exchange
6=Lime Softening (not BAT for systems <500 service connections)
7=Reverse Osmosis
[[Page 464]]
8=Corrosion Control
9=Electrodialysis
10=Chlorine
11=Ultraviolet
(c) A State shall require community water systems and non-transient,
non-community water systems to install and/or use any treatment method
identified in Sec. 142.62 (a) and (b) as a condition for granting a
variance except as provided in paragraph (d) of this section. If, after
the system's installation of the treatment method, the system cannot
meet the MCL, that system shall be eligible for a variance under the
provisions of section 1415(a)(1)(A) of the Act.
(d) If a system can demonstrate through comprehensive engineering
assessments, which may include pilot plant studies, that the treament
methods identified in Sec. 142.62 (a) and (b) would only achieve a de
minimis reduction in contaminants, the State may issue a schedule of
compliance that requires the system being granted the variance to
examine other treatment methods as a condition of obtaining the
variance.
(e) If the State determines that a treatment method identified in
paragraph (d) of this section is technically feasible, the Administrator
or primacy State may require the system to install and/or use that
treatment method in connection with a compliance schedule issued under
the provisions of section 1415(a)(1)(A) of the Act. The State's
determination shall be based upon studies by the system and other
relevant information.
(f) The State may require a public water system to use bottled
water, point-of-use devices, point-of-entry devices or other means as a
condition of granting a variance or an exemption from the requirements
of Sec. 141.61 (a) and (c) and Sec. 141.62, to avoid an unreasonable
risk to health. The State may require a public water system to use
bottled water and point-of-use devices or other means, but not point-of-
entry devices, as a condition for granting an exemption from corrosion
control treatment requirements for lead and copper in Secs. 141.81 and
141.82 to avoid an unreasonable risk to health. The State may require a
public water system to use point-of-entry devices as a condition for
granting an exemption from the source water and lead service line
replacement requirements for lead and copper under Secs. 141.83 or
141.84 to avoid an unreasonable risk to health.
(g) Public water systems that use bottled water as a condition for
receiving a variance or an exemption from the requirements of
Sec. 141.61 (a) and (c) and Sec. 141.62, or an exemption from the
requirements of Secs. 141.81-141.84 must meet the requirements specified
in either paragraph (g)(1) or (g)(2) and paragraph (g)(3) of this
section:
(1) The Administrator or primacy State must require and approve a
monitoring program for bottled water. The public water system must
develop and put in place a monitoring program that provides reasonable
assurances that the bottled water meets all MCLs. The public water
system must monitor a representative sample of the bottled water for all
contaminants regulated under Sec. 141.61 (a) and (c) and Sec. 141.62
during the first three-month period that it supplies the bottled water
to the public, and annually thereafter. Results of the monitoring
program shall be provided to the State annually.
(2) The public water system must receive a certification from the
bottled water company that the bottled water supplied has been taken
from an ``approved source'' as defined in 21 CFR 129.3(a); the bottled
water company has conducted monitoring in accordance with 21 CFR
129.80(g) (1) through (3); and the bottled water does not exceed any
MCLs or quality limits as set out in 21 CFR 103.35, part 110, and part
129. The public water system shall provide the certification to the
State the first quarter after it supplies bottled water and annually
thereafter. At the State's option a public water system may satisfy the
requirements of this subsection if an approved monitoring program is
already in place in another State.
(3) The public water system is fully responsible for the provision
of sufficient quantities of bottled water to every person supplied by
the public water system via door-to-door bottled water delivery.
(h) Public water systems that use point-of-use or point-of-entry
devices as a condition for obtaining a variance
[[Page 465]]
or an exemption from NPDWRs must meet the following requirements:
(1) It is the responsibility of the public water system to operate
and maintain the point-of-use and/or point-of-entry treatment system.
(2) Before point-of-use or point-of-entry devices are installed, the
public water system must obtain the approval of a monitoring plan which
ensures that the devices provide health protection equivalent to that
provided by central water treatment.
(3) The public water system must apply effective technology under a
State-approved plan. The microbiological safety of the water must be
maintained at all times.
(4) The State must require adequate certification of performance,
field testing, and, if not included in the certification process, a
rigorous engineering design review of the point-of-use and/or point-of-
entry devices.
(5) The design and application of the point-of-use and/or point-of-
entry devices must consider the potential for increasing concentrations
of heterotrophic bacteria in water treated with activated carbon. It may
be necessary to use frequent backwashing, post-contactor disinfection,
and Heterotrophic Plate Count monitoring to ensure that the
microbiological safety of the water is not compromised.
(6) The State must be assured that buildings connected to the system
have sufficient point-of-use or point-of-entry devices that are properly
installed, maintained, and monitored such that all consumers will be
protected.
(7) In requiring the use of a point-of-entry device as a condition
for granting an exemption from the treatment requirements for lead and
copper under Sec. 141.83 or Sec. 141.84, the State must be assured that
use of the device will not cause increased corrosion of lead and copper
bearing materials located between the device and the tap that could
increase contaminant levels at the tap.
[56 FR 3596, Jan. 30, 1991, as amended at 56 FR 26563, June 7, 1991; 57
FR 31848, July 17, 1992; 59 FR 33864, June 30, 1994; 59 FR 34325, July
1, 1994]
Sec. 142.63 Variances and exemptions from the maximum contaminant level for total coliforms.
(a) No variances or exemptions from the maximum contaminant level in
Sec. 141.63 of this chapter are permitted.
(b) EPA has stayed the effective date of this section relating to
the total coliform MCL of Sec. 141.63(a) of this chapter for systems
that demonstrate to the State that the violation of the total coliform
MCL is due to a persistent growth of total coliforms in the distribution
system rather than fecal or pathogenic contamination, a treatment lapse
or deficiency, or a problem in the operation or maintenance of the
distribution system.
[54 FR 27568, June 29, 1989, as amended at 56 FR 1557, Jan. 15, 1991]
Sec. 142.64 Variances and exemptions from the requirements of part 141, subpart H--Filtration and Disinfection.
(a) No variances from the requirements in part 141, subpart H are
permitted.
(b) No exemptions from the requirements in Sec. 141.72(a)(3) and
(b)(2) to provide disinfection are permitted.
[54 FR 27540, June 29, 1989]
Subpart H--Indian Tribes
Source: 53 FR 37411, Sept. 26, 1988, unless otherwise noted.
Sec. 142.72 Requirements for Tribal eligibility.
The Administrator is authorized to treat an Indian Tribe as eligible
to apply for primary enforcement responsibility for the Public Water
System Program if it meets the following criteria:
(a) The Indian Tribe is recognized by the Secretary of the Interior.
(b) The Indian Tribe has a tribal governing body which is currently
``carrying out substantial governmental duties and powers'' over a
defined area, (i.e., is currently performing governmental functions to
promote the health, safety, and welfare of the affected population
within a defined geographic area).
[[Page 466]]
(c) The Indian Tribe demonstrates that the functions to be performed
in regulating the public water systems that the applicant intends to
regulate are within the area of the Indian Tribal government's
jurisdiction.
(d) The Indian Tribe is reasonably expected to be capable, in the
Administrator's judgment, of administering (in a manner consistent with
the terms and purposes of the Act and all applicable regulations) an
effective Public Water System program.
[53 FR 37411, Sept. 26, 1988, as amended at 59 FR 64344, Dec. 14, 1994]
Sec. 142.76 Request by an Indian Tribe for a determination of eligibility.
An Indian Tribe may apply to the Administrator for a determination
that it meets the criteria of section 1451 of the Act. The application
shall be concise and describe how the Indian Tribe will meet each of the
requirements of Sec. 142.72. The application shall consist of the
following information:
(a) A statement that the Tribe is recognized by the Secretary of the
Interior.
(b) A descriptive statement demonstrating that the Tribal governing
body is currently carrying out substantial governmental duties and
powers over a defined area. The statement should:
(1) Describe the form of the Tribal government;
(2) Describe the types of governmental functions currently performed
by the Tribal governing body such as, but not limited to, the exercise
of police powers affecting (or relating to) the health, safety, and
welfare of the affected population; taxation; and the exercise of the
power of eminent domain; and
(3) Identify the sources of the Tribal government's authority to
carry out the governmental functions currently being performed.
(c) A map or legal description of the area over which the Indian
Tribe asserts jurisdiction; a statement by the Tribal Attorney General
(or equivalent official) which describes the basis for the Tribe's
jurisdictional assertion (including the nature or subject matter of the
asserted jurisdiction); a copy of those documents such as Tribal
constitutions, by-laws, charters, executive orders, codes, ordinances,
and/or resolutions which the Tribe believes are relevant to its
assertions regarding jurisdiction; and a description of the locations of
the public water systems the Tribe proposes to regulate.
(d) A narrative statement describing the capability of the Indian
Tribe to administer an effective Public Water System program. The
narrative statement should include:
(1) A description of the Indian Tribe's previous management
experience which may include, the administration of programs and
services authorized by the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.), the Indian Mineral Development
Act (25 U.S.C. 2101 et seq.), or the Indian Sanitation Facilities
Construction Activity Act (42 U.S.C. 2004a).
(2) A list of existing environmental or public health programs
administered by the Tribal governing body and a copy of related Tribal
laws, regulations and policies.
(3) A description of the Indian Tribe's accounting and procurement
systems.
(4) A description of the entity (or entities) which exercise the
executive, legislative, and judicial functions of the Tribal government.
(5) A description of the existing, or proposed, agency of the Indian
Tribe which will assume primary enforcement responsibility, including a
description of the relationship between owners/operators of the public
water systems and the agency.
(6) A description of the technical and administrative capabilities
of the staff to administer and manage an effective Public Water System
Program or a plan which proposes how the Tribe will acquire additional
administrative and/or technical expertise. The plan must address how the
Tribe will obtain the funds to acquire the additional administrative and
technical expertise.
(e) The Administrator may, in his discretion, request further
documentation necessary to support a Tribe's eligibility.
(f) If the Administrator has previously determined that a Tribe has
met the prerequisites that make it eligible to assume a role similar to
that of a state as provided by statute under
[[Page 467]]
the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act,
then that Tribe need provide only that information unique to the Public
Water System program (paragraph (c), (d)(5) and (6) of this section).
[53 FR 37411, Sept. 26, 1988, as amended at 59 FR 64344, Dec. 14, 1994]
Sec. 142.78 Procedure for processing an Indian Tribe's application.
(a) The Administrator shall process a completed application of an
Indian Tribe in a timely manner. He shall promptly notify the Indian
Tribe of receipt of the application.
(b) A tribe that meets the requirements of Sec. 142.72 is eligible
to apply for development grants and primary enforcement responsibility
for a Public Water System Program and associated funding under section
1443(a) of the Act and for primary enforcement responsibility for public
water systems under section 1413 of the Act.
[53 FR 37411 Sept. 26, 1988, as amended at 59 FR 64345, Dec. 14, 1994]
Subpart I--Administrator's Review of State Decisions that Implement
Criteria Under Which Filtration Is Required
Source: 54 FR 27540, June 29, 1989, unless otherwise noted.
Sec. 142.80 Review procedures.
(a) The Administrator may initiate a comprehensive review of the
decisions made by States with primary enforcement responsibility to
determine, in accordance with Sec. 141.71 of this chapter, if public
water systems using surface water sources must provide filtration
treatment. The Administrator shall complete this review within one year
of its initiation and shall schedule subsequent reviews as (s)he deems
necessary.
(b) EPA shall publish notice of a proposed review in the Federal
Register. Such notice must:
(1) Provide information regarding the location of data and other
information pertaining to the review to be conducted and other
information including new scientific matter bearing on the application
of the criteria for avoiding filtration; and
(2) Advise the public of the opportunity to submit comments.
(c) Upon completion of any such review, the Administrator shall
notify each State affected by the results of the review and shall make
the results available to the public.
Sec. 142.81 Notice to the State.
(a) If the Administrator finds through periodic review or other
available information that a State (1) has abused its discretion in
applying the criteria for avoiding filtration under Sec. 141.71 of this
chapter in determining that a system does not have to provide filtration
treatment, or (2) has failed to prescribe compliance schedules for those
systems which must provide filtration in accordance with section
1412(b)(7)(C)(ii) of the Act, (s)he shall notify the State of these
findings. Such notice shall:
(1) Identify each public water system for which the Administrator
finds the State has abused its discretion;
(2) Specify the reasons for the finding;
(3) As appropriate, propose that the criteria of Sec. 141.71 of this
chapter be applied properly to determine the need for a public water
system to provide filtration treatment or propose a revised schedule for
compliance by the public water system with the filtration treatment
requirements;
(b) The Administrator shall also notify the State that a public
hearing is to be held on the provisions of the notice required by
paragraph (a) of this section. Such notice shall specify the time and
location of the hearing. If, upon notification of a finding by the
Administrator that the State has abused its discretion under Sec. 141.71
of this chapter, the State takes corrective action satisfactory to the
Administrator, the Administrator may rescind the notice to the State of
a public hearing.
(c) The Administrator shall publish notice of the public hearing in
the Federal Register and in a newspaper of general circulation in the
involved State, including a summary of the findings made pursuant to
paragraph (a) of this section, a statement of the time and location for
the hearing, and the
[[Page 468]]
address and telephone number of an office at which interested persons
may obtain further information concerning the hearing.
(d) Hearings convened pursuant to paragraphs (b) and (c) of this
section shall be conducted before a hearing officer to be designated by
the Administrator. The hearing shall be conducted by the hearing officer
in an informal, orderly, and expeditious manner. The hearing officer
shall have the authority to call witnesses, receive oral and written
testimony, and take such other action as may be necessary to ensure the
fair and efficient conduct of the hearing. Following the conclusion of
the hearing, the hearing officer may make a recommendation to the
Administrator based on the testimony presented at the hearing and shall
forward any such recommendation and the record of the hearing to the
Administrator.
(e) Within 180 days after the date notice is given pursuant to
paragraph (b) of this section, the Administrator shall:
(1) Rescind the notice to the State of a public hearing if the State
takes corrective action satisfactory to the Administrator; or
(2) Rescind the finding for which the notice was given and promptly
notify the State of such rescission; or
(3) Uphold the finding for which the notice was given. In this
event, the Administrator shall revoke the State's decision that
filtration was not required or revoke the compliance schedule approved
by the State, and promulgate, as appropriate, with any appropriate
modifications, a revised filtration decision or compliance schedule and
promptly notify the State of such action.
(f) Revocation of a State's filtration decision or compliance
schedule and/or promulgation of a revised filtration decision or
compliance schedule shall take effect 90 days after the State is
notified under paragraph (e)(3) of this section.
Subpart J--Procedures for PWS Administrative Compliance Orders
Source: 56 FR 3755, Jan. 30, 1991, unless otherwise noted.
Sec. 142.201 Purpose.
This part prescribes procedures for notice and opportunity for
public hearings, conferences with primary States and issuance of
administrative compliance orders under section 1414(g) of the Safe
Drinking Water Act, 42 U.S.C. 300g-3(g).
Sec. 142.202 Definitions.
(a) The term Hearing Officer means an Environmental Protection
Agency employee who has been delegated by the Administrator the
authority to preside over a public hearing held pursuant to section
1414(g)(2) of the Safe Drinking Water Act, 42 U.S.C. 300g-3(g)(2).
(b) The term party means any ``person'' or ``supplier of water'' as
defined in section 1401 of the SDWA, 42 U.S.C. 300f, alleged to have
violated any regulation implementation section 1412 of the SDWA, 42
U.S.C. 300g-1, any schedule or other requirement imposed pursuant to
section 1415 or section 1416 of the SDWA, 42 U.S.C. 300g-4 and 300g-5,
or section 1445 of the SDWA, 42 U.S.C. 300j-4, or any regulation
implementing section 1445.
Sec. 142.203 Proposed administrative compliance orders.
If the Administrator finds that a party has violated a regulation,
schedule, or other requirement of the SDWA referenced in
Sec. 142.202(b), the Administrator may prepare a proposed administrative
compliance order that would require the party to comply with the
regulation, schedule, or other requirement that is alleged to have been
violated. Any such proposed administrative order shall state with
reasonable specificity the nature of the violation, and may, if
appropriate, specify a reasonable time for compliance.
Sec. 142.204 Notice of proposed administrative compliance orders.
The Administrator shall simultaneously provide a copy of any
proposed administrative compliance order to:
(a) The party. The Administrator shall provide a copy of a proposed
compliance order to the party personally or by sending it to the party
by certified mail, return receipt requested. The Administrator shall
provide a copy of a proposed administrative compliance
[[Page 469]]
order to an appropriate person, such as the affected location or
facility manager, or any other appropriate employee or agent of the
party who in the ordinary course of business is authorized to sign for
certified mail on behalf of the party. If the party is a federal agency,
State or State agency, or a local unit of government, the Administrator
shall provide a copy of a proposed administrative order to its chief
executive officer, or its authorized agent for receipt of certified
mail. Notification of the party is complete upon acceptance of personal
service or when the return receipt is signed. If personal service is
ineffective and if certified mail is refused or unclaimed, the
Administrator shall notify the party by another appropriate means. In
such case, notification is complete upon the execution of substituted
service.
(b) The public. The Administrator shall make publicly available each
proposed administrative compliance order at the time of its proposal.
(c) The State. In the case of a State with primary enforcement
responsibility for public water systems pursuant to section 1413(a) of
the SDWA, 42 U.S.C. 300g-2(a), the Administrator shall provide notice
under this subsection by sending a copy of each proposed administrative
compliance order by certified mail, return receipt requested to the
appropriate State agency of the State involved.
Sec. 142.205 Opportunity for public hearings; opportunity for State conferences.
(a) The Administrator shall provide the party, the public and the
State an opportunity for a public hearing on any proposed administrative
compliance order by stating in a letter accompanying each proposed
administrative compliance order (or its copy) that a public hearing
shall be convened if the party or the State sends written notice of such
request to the Administrator within fourteen days of receipt of the
proposed administrative compliance order noticed under Sec. 142.204, or
if the Administrator determines that within fourteen days of the date of
notice the public has expressed a significant interest in the convening
of a public hearing. Hearings will be held only for the purposes
specified in Sec. 142.206(a). All requests for hearings shall identify
which of the purposes specified in Sec. 142.206(a) is the basis for the
request. The Administrator may extend the time allowed for submitting
requests for good cause.
(b) In the case of a State with primary enforcement responsibility
under section 1413(a) of the SDWA, the Administrator shall provide the
State with an opportunity to confer regarding any proposed
administrative compliance order to a public water supplier by stating in
a letter accompanying each mailing of the proposed administrative
compliance order sent to the State that such a conference shall be held
between the State and the Administrator, if the State requests such a
conference within ten days of the dates of receipt of proposed
administrative compliance order noticed under Sec. 142.204.
(c) For purposes of this subsection, receipt occurs at the time of
personal service or three days after the date of mailing or other means
of substituted service, except that if receipt is provided by certified
mail, return receipt requested, notice occurs when the return receipt is
signed. For the purpose of computation of time, the day of the mailing,
Saturdays, Sundays, and federal holidays are excluded.
Sec. 142.206 Conduct of public hearings.
(a) The purpose of the public hearing shall be to determine whether
a proposed administrative order:
(1) Has correctly stated the extent and nature of a party's
violation of any regulation, schedule, or other requirement of the SDWA
referenced in Sec. 142.202(b) and
(2) Has provided, where appropriate, a reasonable time for the party
to comply with applicable requirements of the SDWA and its implementing
regulations.
(b) Prior to convening a public hearing under this subsection, the
Administrator shall appoint a Hearing Officer. The Hearing Officer shall
preside over any public hearing convened under this section. The Hearing
Officer shall determine the form and procedures of the public hearing,
and shall maintain complete and accurate record of the
[[Page 470]]
proceedings in written or other permanent form. The Hearing Officer
shall provide the Administrator with the record of any public hearing
conducted under this subsection.
(c) The party, any member of the public, or the State may present
information to the Hearing Officer at the public hearing (or to the
Administrator in writing before the date set for the public hearing)
relevant to whether:
(1) The party has violated the applicable regulation, schedule, or
other requirement referenced in the proposed administrative compliance
order;
(2) The party has violated any other applicable regulation,
schedule, or other requirement of the SDWA referenced in
Sec. 142.202(b); and
(3) The proposed order, where appropriate, provides a reasonable
time for the party to comply with applicable requirements of the SDWA
and its implementing regulations.
Sec. 142.207 Issuance, amendment or withdrawal of administrative compliance order.
(a) Based on the administrative record, the Administrator shall
either issue the order as proposed, amend the proposed order or withdraw
the proposed order.
(b) Any order issued shall require the party to comply with any
applicable regulation, schedule, or other requirement of the SDWA
referenced in Sec. 142.202(b) and may establish a time or date for
compliance which the Administrator determines is reasonable, based on
the administrative record.
(c) The Administrator shall determine within a reasonable time
whether to issue, amend or withdraw the proposed order and shall
promptly notify in writing the party, all members of the public
participating under Sec. 142.206(c) and the State, in the case of a
State with primary enforcement authority over public water systems
pursuant to section 1413(a) of the SDWA, or in the case of a State
participating under Sec. 142.206(c).
Sec. 142.208 Administrative assessment of civil penalty for violation of administrative compliance order.
In the event the Administrator decides to seek a penalty under the
authority provided in section 1414(g)(3)(B) of the SDWA, 42 U.S.C. 300g-
3(g)(3)(B), for violation of, or failure or refusal to comply with, an
order, the procedures provided in 40 CFR part 22 shall govern the
assessment of such a penalty.