[Senate Report 104-169]
[From the U.S. Government Publishing Office]
104th Congress 1st SENATE Report
Session
104-169
_______________________________________________________________________
Calendar No. 226
SAFE DRINKING WATER AMENDMENTS ACT OF 1995
----------
R E P O R T
of the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
on
S. 1316
[Including cost estimate of the Congressional Budget Office]
November 7, 1995.--Ordered to be printed
SAFE DRINKING WATER AMENDMENTS ACT OF 1995
104th Congress 1st SENATE Report
Session
104-169
_______________________________________________________________________
Calendar No. 226
SAFE DRINKING WATER AMENDMENTS ACT OF 1995
__________
R E P O R T
of the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
on
S. 1316
[Including cost estimate of the Congressional Budget Office]
November 7, 1995.--Ordered to be printed
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
JOHN H. CHAFEE, Rhode Island,
Chairman
MAX BAUCUS, Montana JOHN W. WARNER, Virginia
DANIEL PATRICK MOYNIHAN, New York ROBERT SMITH, New Hampshire
FRANK R. LAUTENBERG, New Jersey LAUCH FAIRCLOTH, North Carolina
HARRY REID, Nevada DIRK KEMPTHORNE, Idaho
BOB GRAHAM, Florida JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut CRAIG THOMAS, Wyoming
BARBARA BOXER, California MITCH McCONNELL, Kentucky
CHRISTOPHER S. BOND, Missouri
Steven J. Shimberg, Staff Director
J. Thomas Sliter, Minority Staff
Director
C O N T E N T S
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Page
General Statement................................................ 1
Background....................................................... 2
Types of contaminants and health risks in drinking water......... 6
History of Federal drinking water regulations.................... 8
Problems and solutions........................................... 10
Section-by-section summary:
Section:
1. Short title.......................................... 17
2. Findings............................................. 17
3. State revolving funds................................ 17
4. Selection of contaminants; schedule.................. 24
5. Risk assessment, management, and communication....... 27
6. Standard-setting; review of standards................ 30
7. Arsenic.............................................. 38
8. Radon................................................ 41
9. Sulfate.............................................. 44
10. Filtration and disinfection.......................... 46
11. Effective date for regulations....................... 48
12. Technology and treatment techniques; technology
centers................................................ 50
13. Variances and exemptions............................. 52
14. Small systems; technical assistance.................. 54
15. Capacity development; finance centers................ 58
16. Operator and laboratory certification................ 61
17. Source water quality protection partnerships......... 62
18. State primacy; state funding......................... 67
19. Monitoring and information gathering................. 69
20. Public notification.................................. 77
21. Enforcement; judicial review......................... 79
22. Federal agencies..................................... 83
23. Research............................................. 85
24. Definitions.......................................... 87
25. Ground water protection.............................. 90
26. Lead plumbing and pipes; return flows................ 93
27. Bottled water........................................ 95
28. Assessing environmental priorities, costs, and
benefits............................................... 97
29. Other amendments..................................... 99
Hearings......................................................... 100
Rollcall votes................................................... 100
Regulatory impact................................................ 101
Cost of legislation.............................................. 103
Changes in existing law.......................................... 112
Calendar No. 226
104th Congress Report
SENATE
1st Session 104-169
_______________________________________________________________________
SAFE DRINKING WATER AMENDMENTS ACT OF 1995
_______
November 7, 1995.--Ordered to be printed
_______________________________________________________________________
Mr. Chafee, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
[To accompany S. 1316]
The Committee on Environment and Public Works, to which
was referred the bill (S. 1316) to reauthorize and amend title
XIV of the Public Health Service Act (commonly known as the
``Safe Drinking Water Act''), and for other purposes, having
considered the same, reports favorably thereon with amendments
and recommends that the bill do pass.
General Statement
Objectives of the Legislation
The outbreak of Cryptosporidiosis in Milwaukee in the
Spring of 1993 focused the Nation's attention on the Safe
Drinking Water Act and dramatically highlighted the fundamental
problem with the Act as it is currently written and
implemented. Although the Environmental Protection Agency (EPA)
developed a research plan to improve our understanding of
Cryptosporidium over a decade ago, the research has not been
completed and Cryptosporidium remains unregulated today. The
problem is that the Safe Drinking Water Act unintentionally
discourages EPA from concentrating its resources on regulating
contaminants that pose the highest health risks. Instead, the
Safe Drinking Water Act requires EPA to regulate a long list of
contaminants, regardless of the seriousness of the threat they
pose to public health and regardless the frequency with which
they occur in drinking water.
The bill addresses the legitimate concerns that have been
raised regarding current law and provides important mid-course
corrections to the Act, while at the same time ensuring that we
continue to protect public health. It reflects over 2 years of
hearings and extensive discussions with the stakeholders.
In drafting the Safe Drinking Water Act Amendments of
1995, the Committee sought to achieve several objectives.
First, the Act must give EPA flexibility to set drinking water
standards based on peer-reviewed science and the benefits and
risks associated with contaminants. Second, Congress must
commit the funds to carry out needed research to identify those
contaminants that pose the most serious health concern. Third,
a public record must be created to educate the American people
about the risks they face from a particular contaminant, and
the costs to regulate it. Fourth, the Act must be administered
to be affordable for small systems. Finally, Congress must
allow States and local governments to be full partners in the
development, implementation and enforcement of drinking water
regulations.
Summary of the Major Provisions
To achieve these objectives, S. 1316:
authorizes a new grant program to capitalize State
revolving funds to make grants and loans for
drinking water treatment;
establishes new principles for the selection of
contaminants for regulation based on sound science
and occurrence at levels of public health concern;
allows EPA to weigh relative costs and health
benefits and competing health risks in new
standards;
provides for consideration of other risk factors
in setting standards for radon, arsenic and
sulfate;
gives each State flexibility to tailor monitoring
requirements to the conditions that exist in the
State;
authorizes variances for small systems that cannot
afford to comply with national standards;
provides funds for technical assistance, operator
training and capacity development strategies;
encourages voluntary partnerships at the local
level to protect source waters from contamination;
and
increases funding for State program administration
and technical assistance.
Background
Compared to other environmental laws, the Safe Drinking
Water Act is relatively simple in structure. But to be
successful, it requires a high degree of intergovernmental
cooperation. The rapid pace of new regulations and the shortage
of resources at all levels of government are now causing
implementation problems for those subject to the requirements
of the Act.
Federal Standards
The Federal role in the Safe Drinking Water Act is
expressed through national primary drinking water regulations
promulgated by EPA. These are standards applicable to public
water systems and are established to protect public health from
contaminants that may occur in drinking water supplies.
Generally, the standards are stated as concentrations of
particular contaminants in the water (in parts per million or
parts per billion) as delivered to the tap of the consumer. The
regulations also require public water systems to monitor
(sample and test) supplies to assure that the standards are not
exceeded. Monitoring costs are often a substantial portion of
the overall cost imposed by a drinking water regulation.
EPA is required by the Safe Drinking Water Act to set
standards for 83 specific contaminants. The list was originally
developed by EPA based on studies conducted by the National
Academy of Sciences and from water quality surveys done by EPA
to determine which contaminants actually occur in drinking
water.
In addition to these 83 substances, EPA is also required
to set standards for an additional 25 contaminants (selected by
EPA) every 3 years. EPA has not yet issued any standards to
fulfill this mandate.
The standard-setting process is accomplished in two
steps. First, EPA determines how much exposure to any
particular substance from drinking water is ``safe''. The
``safe'' level of exposure identified by EPA is called the
maximum contaminant level goal or MCLG. The MCLG incorporates a
margin of safety to reflect scientific uncertainty and, in some
cases, the particular susceptibility of some groups (e.g.,
children) within the general population. It is not an
enforceable standard. Drinking water with concentrations of a
contaminant at or below the MCLG for the contaminant will not
cause adverse health effects.
For substances that may cause cancer, the ``safe'' level
or MCLG has always been set at zero reflecting the principle
(used in health policies across the Federal Government since
the 1950s) that any exposure to a carcinogen may trigger a
malignant tumor. Twenty-seven of the contaminants currently
regulated have an MCLG of zero because of the cancer-causing
potential of the contaminants. Forty-eight other contaminants
have non-zero MCLGs. \1\
\1\ There are no MCLGs for several contaminants, either because
they are controlled by treatment technique requirements rather than
MCLs or because standards for the contaminant were established at a
time when the Act did not require an MCLG.
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In the second step, EPA sets the enforceable standard as
close to the goal as feasible using the best available
treatment technology that is affordable to large, regional
public water systems. The standard is called the maximum
contaminant level or MCL. It is the number that water suppliers
must meet at the consumers' taps. For substances that do not
cause cancer, the MCL has almost always been set at the same
level as the MCLG. But for the carcinogens, it is not practical
to set the standard at zero. For these contaminants the
standards reflect not the health goal, but the removal
efficiencies and analytical limits of best available treatment
and testing technologies.
The Safe Drinking Water Act authorizes EPA to establish a
treatment requirement rather than an MCL, where compliance with
a numerical standard is not practical (because it is not
possible to measure the contaminant in drinking water). EPA has
used this authority in addressing the lead problem. Under the
recently promulgated lead and copper rule, there is no MCL for
lead. Rather EPA has established a testing program and required
systems to implement corrosion control or lead service line
replacement where an action level for lead is exceeded.
As discussed below, the national primary drinking water
regulations also include requirements for filtration and
disinfection.
State Administration
Once EPA has set standards, the program is largely
administered by the States. All States, except Wyoming and the
District of Columbia, have been granted primacy for most rules.
Primacy means that the State is responsible for assuring that
Federal health standards are met by local water suppliers.
Primacy for a contaminant is granted when a State adopts its
own regulation for the contaminant that is no less stringent
than the one issued by EPA. At the State level, the program is
often run by health departments rather than by environmental
agencies. The health departments frequently operate the
laboratories that actually test water samples to determine
whether the standards are met.
In addition to the Federal requirements, most State
programs have other elements including sanitary surveys
(inspections) and training for local operators that are
significant factors in ensuring the safety of drinking water.
Most States make relatively modest expenditures to carry
out the Safe Drinking Water Act. Setting aside the handful of
States that make a substantial effort, 45 States spend an
average of approximately 20 cents per person per year at the
State level for their drinking water programs.
EPA also provides grants to the States to support the
public water system supervision program. Frequently, the
Federal grant to a State is more than the State itself provides
for the program. Federal grants for this purpose totaled $70
million in fiscal year 1995.
Local Supply
Regulations issued under the Safe Drinking Water Act
require the local supplier to periodically monitor for
contamination. The monitoring is conducted by drawing samples
at the treatment plant, in the distribution system and at
consumers' taps. If the monitoring shows that a standard has
been exceeded, the supplier must notify all of the users
through available media (newspaper and radio) and by mail. The
supplier must also take steps to correct the problem by
treating the water to remove or reduce the contaminant to safe
levels. Civil penalties may be imposed by EPA or a State for a
failure to comply with monitoring, treatment and notification
requirements.
The regulation of drinking water is complicated by the
large number of public water systems and the great variation in
the size and sophistication of these systems. EPA estimates
that there are approximately 185,000 public water systems
subject to the requirements of the Safe Drinking Water Act. Of
these, approximately 57,000 are community water systems--those
that have 15 service connections or serve 25 or more persons
year-round. The community systems meet the drinking water needs
of a residential population totaling 243 million, 92 percent of
the total U.S. population. The remaining 8 percent of the
population receives its water from private wells.
The character of local systems varies dramatically. Some
large city systems spend millions of dollars and employ dozens
of people expert in a wide range of tasks. Other small
community systems are run by homeowners with no technical
training and no compensation.
About 87 percent of the community water systems are small
(25 percent serve between 501 and 3,300 individuals) or very
small (62 percent serve fewer than 500 individuals). While
large in number, these systems serve only about 10.7 percent of
the population. By contrast, nearly 80 percent of the
population (served by public water systems) receives its water
from systems serving more than 10,000 individuals.
There are another 128,000 public water systems that are
classified as noncommunity water systems because they serve
nonresident populations. Of these systems, approximately 24,000
are nontransient, noncommunity water systems (e.g., systems at
schools and workplaces where the same people consume the water
everyday), and 104,000 are transient, noncommunity water
systems serving the general public at facilities such as camps,
hotels, resorts and highway rest stops.
Another important factor in understanding drinking water
supply is the variation in the source of raw water. Many of the
larger city and county systems draw raw water from surface
sources including rivers or lakes or from reservoirs built to
store water specifically for drinking water supply. On the
other hand, most small systems rely on ground water sources for
raw water. Although ground water is less likely to be
contaminated by substances regulated under the Safe Drinking
Water Act (and therefore less likely to require treatment), a
small community may operate several wells and separate
distribution lines to meet its needs. Monitoring requirements
established by the Act may imposes costs in multiples at these
small systems, because each well will need to be individually
sampled and tested to ensure that health standards are not
exceeded.
Ground Water Protection
In addition to the program for drinking water health
standards, the Safe Drinking Water Act also includes provisions
to protect underground sources of drinking water from
contamination. The principal element of ground water protection
is the Underground Injection Control (UIC) program. Under this
program approximately 40 States and EPA have taken steps to
regulate 300,000 injection wells that dispose of waste
underground, including 170,000 oil and gas injection wells and
approximately 200 wells used to dispose of hazardous waste.
Because S. 1316 does not address the UIC program (other
than to reauthorize EPA grants supporting State activities),
this report will contain little additional discussion of this
aspect of the Safe Drinking Water Act.
Part C of the Safe Drinking Water Act also includes
programs to protect the recharge areas of sole source aquifers
and wellhead protection areas for public water systems.
Types of Contaminants and Health Risks in Drinking Water
In recent years EPA and others, including EPA's Science
Advisory Board, have done several studies comparing the
relative risk to public health from various ``environmental''
sources. The risks attributed to drinking water have always
ranked high in these studies relative to other health threats
addressed by EPA programs. EPA estimates that drinking water
rules already issued prevent 500 cancer deaths and 200,000
other illnesses each year.
The contaminants and associated health risks from
drinking water take several different forms. The following
headings group contaminants according to the health effects or
the type of contaminant and discuss the relative risk currently
experienced from drinking water containing such contaminants.
Microbiological Contamination
Drinking water may contain bacteria, viruses, protozoa
and other living organisms that continue to cause widespread
health problems. Typhoid and cholera have largely been
eliminated as a U.S. health problem through chlorination. But
gastrointestinal illness caused by fecal contamination and by
the protozoan Giardia, associated principally with animal
wastes, continue to cause disease outbreaks (about 20 outbreaks
per year with up to several hundred illnesses per outbreak). A
1994 paper published by the Centers for Disease Control
estimated that 900,000 people experience illness and 900 people
die each year as the result of pathogenic organisms in drinking
water. A 1993 episode in Milwaukee caused by the
Cryptosporidium organism caused 400,000 illnesses and more than
100 deaths.
Disinfection Byproducts
The chlorination process that is used to eliminate the
threat of pathogenic organisms in drinking water may be the
source of another major health threat attributable to the U.S.
drinking water supply. Chlorine, used as a disinfectant,
combines with other organic compounds (including decomposing
leaves and other natural materials) that are in the raw water
to form chlorinated, organic compounds like chloroform. As a
class of chemicals these compounds are referred to as
trihalomethanes or disinfection byproducts. One recently
published summary of peer-reviewed health studies estimated
that approximately 15 percent of the bladder and rectal cancers
(10,000 cases per year) in the U.S. are caused by these
compounds in drinking water supplies. The current drinking
water standard for trihalomethanes may allow an increase in
lifetime cancer risks of 1-in-10,000 (that is 1 in every 10,000
people drinking water with THMs at the standard may experience
a fatal cancer as a result). Removing the organic materials
before chlorination or using alternative disinfection methods
may be potential avenues to reduce this cancer risk.
Lead
Lead in drinking water presents another major health
threat. The source of the lead is generally the service lines
and home plumbing that deliver drinking water to the tap. Lead
is no longer used in home construction, but corrosive water
continues to leach lead from plumbing installed in the first
three quarters of the century. Lead continues to be used in the
manufacture of faucets and other plumbing fixtures. High lead
levels in the blood of children is associated with slower
cognitive development (lowering IQ). In adults lead may
contribute to high blood pressure, heart attacks and strokes.
Lead is also a carcinogen. EPA's lead rule will reduce lead
exposure for three million children and prevent 180,000 cases
of hypertension. It has a net health benefit of $1.4 billion
per year.
Radon and Other Radionuclides
A large number of drinking water systems supplied by
ground water wells are contaminated by naturally-occurring
radioactive substances including radon, radium and uranium.
When these contaminants decay (fission) in the human body, they
may cause an increased risk of cancer. In 1991, EPA proposed a
radon standard that would (according to EPA's report on the
rule) prevent 84 of the estimated 192 annual cancer cases
attributable to radon in drinking water at a cost of $272
million per year. The cancer risk from radon entering homes
from soil gases (estimated by EPA to be 13,600 cancer cases
annually) is much greater than the drinking water risk.
Congress has delayed the promulgation of EPA's radon standard
to consider the relative risk implications of these statistics.
Other Cancer-Causing Substances
A number of other man-made chemicals, principally
industrial solvents and pesticides, occur in drinking water
supplies and present a modest cancer risk over a lifetime of
drinking water consumption. Almost all systems supplied by
surface water (rivers, lakes and reservoirs) are likely to have
a large number of these man-made chemicals but in very small
quantities. Ground water systems are much less likely to be
contaminated, but when they are, the level of contamination may
be much higher (because the contaminant moves through ground
water in a concentrated plume rather than mixing or evaporating
to the air). About 10 percent of ground water wells supplying
drinking water systems are contaminated with man-made
chemicals--an estimated 3 percent at levels above EPA health
standards.
Inorganic Substances
There are a number of other substances, many naturally-
occurring, which may contaminate drinking water supplies. Most
of these substances are metals or salts with health effects
other than cancer. The most widespread inorganic contaminant is
nitrate which may come from human and animal waste disposal and
from commercial fertilizer. Infants cannot digest nitrate. It
enters the bloodstream and interferes with the uptake of oxygen
producing a sometimes fatal disease (``blue baby'' disease).
Other inorganic contaminants of concern include arsenic,
selenium, sulfate and fluoride.
History of Federal Drinking Water Regulation
The Federal Government first set standards for drinking
water quality in 1914. These standards applied to approximately
800 water systems that provided drinking water for interstate
passenger carriers (trains, buses and eventually airlines). The
standards were revised and extended in 1942, and again in 1962.
The standards were administered by the Public Health Service
and were used as a voluntary reference for quality in many city
drinking water systems. The Public Health Service eventually
set standards for 16 contaminants including bacteria and
several inorganic chemicals (arsenic, mercury, cadmium,
nitrate, etc.). The drinking water program was transferred to
EPA as part of the 1970 reorganization plan that created the
Agency.
Congress enacted the Safe Drinking Water Act in 1974. It
authorized EPA to set standards for any contaminant in public
water systems that may have an adverse effect on health.
Congressional action came in response to a series of reports on
the large number of industrial and agricultural chemicals that
had polluted surface water and ground water supplies and
studies conducted by researchers at Cornell University on the
presence and health effects of naturally-occurring contaminants
found in the water supplies of many small, rural communities.
The Safe Drinking Water Act requires all public water
supply systems to comply with health standards issued by EPA.
Many of the national primary drinking water regulations do not
apply to noncommunity systems serving transient populations.
The standards for the 16 contaminants regulated by the
Public Health Service were immediately converted (by the 1974
Act) to national standards applicable to all public water
supply systems. In the late 1970s, EPA set additional standards
for 6 pesticides. In 1979, EPA set a standard for
trihalomethanes (THMs). Trihalomethanes are byproducts of the
chlorination process (are among a group of contaminants
referred to as disinfection byproducts or DBPs). This group of
substances was regulated under a single trihalomethane standard
(limiting the combined quantity of all substances in the group)
applicable only to those public water systems serving 10,000 or
more people.
The total number of standards in place by the early 1980s
was 23 including the 16 regulated by the Public Health Service,
the 6 pesticides and THMs.
Congress reauthorized the Safe Drinking Water Act in 1986
(the 1986 Amendments) making significant changes in the law. At
the time there was a widespread consensus that EPA had not set
standards for a sufficient number of contaminants to adequately
protect drinking water supplies. Many States were making plans
to issue standards of their own. Ground water cleanup efforts
across the country were stymied by an inability to answer the
question, ``How clean is clean.'' Drinking water standards for
5 industrial solvents proposed by EPA were being held by the
Office of Management and Budget. In this environment, the
States, along with water suppliers and the environmental
community, urged that EPA be required to move forward on a
standard-setting agenda that would fulfill the Federal role.
In the 1986 Amendments, Congress listed 83 contaminants
(including 22 of the contaminants for which standards had
already been set) and required EPA to establish or revise
standards for each contaminant within 3 years. The list of 83
contaminants was developed by EPA based on studies conducted by
EPA and the National Academy of Sciences and had been published
in the Federal Register. Congress authorized EPA to modify the
list subsequent to enactment allowing the Agency to delete up
to 7 contaminants on the list and substitute other contaminants
posing greater health problems. EPA used the authority to make
7 modifications to the list.
In addition, the 1986 Amendments required EPA to add 25
contaminants to the list every 3 years after the standards for
the initial 83 contaminants had been issued. (If EPA had fully
complied with this requirement of the law, standards for 133
contaminants would have been issued by 1994.)
Although EPA has yet to act on the mandate for 25
additional standards every 3 years, work on the initial set of
83 standards has largely been completed through the following
regulations:
a standard was issued for fluoride on April 2,
1986;
standards for a group of 8 volatile organic
compounds including benzene and trichloroethylene
(generally called the Phase I or VOC rule) were
issued on July 8, 1987;
the surface water treatment rule setting standards
for bacteria, viruses, Giardia and Legionella was
issued on June 29, 1989 and covered 6 contaminants;
a rule covering 34 organic and inorganic
contaminants including pesticides and metals
(previously regulated) and called the Phase II rule
was issued on January 30, 1991;
a rule for lead and copper was issued on June 6,
1991;
a rule for aldicarb and its byproducts and
pentachlorophenol (a total of 4 contaminants) was
issued on July 1, 1991; and
a rule covering 23 pesticides, organic chemicals
and inorganic chemicals and called the Phase V rule
was issued on July 25, 1992.
In addition EPA has proposed standards for a group of 6
radionuclides, including radon (published July 18, 1991), and
sulfate (published December 1, 1994) and has under
consideration a standard for arsenic. \2\
\2\ Because arsenic and some radionuclides were regulated under the
old Public Health Service rules, standards for these contaminants are
in place and enforced. EPA is reviewing and revising these standards in
response to the 1986 Amendments. Radon was not one of the radionuclides
regulated under the old rules.
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Although EPA did not complete the standard-setting
process within 3 years, it has now reached the point where
standards have been promulgated or proposed for 88
contaminants. EPA has also identified the first group of 25
additional contaminants for which regulations are to be set.
Approximately one-half of the contaminants in this group are
disinfectants or disinfection byproducts, many of which are
already regulated as trihalomethanes under the standard
promulgated in 1979. EPA conducted a regulatory negotiation
among interested parties to arrive at the new standards for
disinfection byproducts leading to proposed regulations
published in the Federal Register on July 29, 1994.
EPA also has under study a group of 13 contaminants,
known as the Phase VIb group, that would fulfill the mandate
for the first 25 contaminants to be regulated after the initial
list of 83 was completed.
In addition to MCLs for specific contaminants, the Safe
Drinking Water Act also mandates filtration treatment for water
supplies drawn from surface water sources and disinfection for
all systems. Filtration (forcing the water through sand or some
other material) removes the larger microorganisms, including
Giardia and, to some degree, Cryptosporidium, which may cause
intestinal diseases. If the water supplier can show that the
surface water source is protected (development in the watershed
is controlled to prevent contamination of the reservoir), a
waiver from filtration can be granted by the State in which the
system is located.
Disinfection with chlorine (or other reactive agents) is
used to prevent disease caused by biological contaminants. It
is almost universally used in systems drawing from surface
waters. However, many ground water systems have not employed
disinfection because the source water is much less likely to be
contaminated. Because bacteria and viruses can enter into
ground water and may also grow in the distribution systems (in
the pipes and lines that deliver the water to homes), the 1986
Amendments mandate disinfection for ground water supplies, as
well. EPA has yet to issue the rule for disinfection of water
from ground water sources. \3\
\3\ These requirements are modified by the bill.
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Problems and Solutions
As regulations promulgated under the 1986 Amendments
began to take effect in the late-1980s, increasing concerns
were expressed about the impact of Federal mandates on local
drinking water systems and the capacity of States to keep up
with a growing workload. These concerns prompted amendments to
the fiscal year 1993 appropriations bill for EPA to modify the
direction of the drinking water program. After a thorough
debate of the principal elements of the Act, including
standard-setting authorities and the monitoring requirements
that had been imposed, the Senate adopted a two-part amendment
that required EPA to prepare a general report on implementation
problems and prohibited EPA from promulgating a standard for
radon until further analysis of the science supporting the
standard had been completed.
EPA published the general report on the capacity of
States and public water systems to comply with the Act in
September, 1993 (Technical and Economic Capacity of States and
Public Water Systems to Implement Drinking Water Regulations:
Report to Congress). At that time, EPA also made ten
recommendations for reform that included creation of revolving
funds, streamlining enforcement authorities, protecting source
water and addressing the capacity problems of small systems.
In the 103d Congress, the Committee reported S. 2019, a
reauthorization bill incorporating many of the recommendations
made by EPA and other reforms that were proposed by a coalition
of State and local organizations with direct interest in the
drinking water program. That bill was considered and passed by
the Senate on May 18, 1994 by a vote of 95-3 . The House also
passed a reauthorization bill by a similar margin.
S. 1316 builds on this foundation in the following ways.
An Unfunded Mandate
National primary drinking water regulations issued under
the 1986 Amendments are imposing substantial costs on public
water systems. EPA estimates that capital expenditures needed
nationwide to comply with current requirements of the Safe
Drinking Water Act total approximately $8.6 billion, and
approximately 40 percent of these expenditures will be required
of small systems. Additional rules under development,
particularly standards for disinfection byproducts, radon,
arsenic and requirements for the disinfection of ground water
systems may impose substantial additional capital costs. Many
systems will not be able to finance treatment facilities to
comply with the new regulations without financial assistance.
Other Federal statutes mandating investment in local
utility services have provided grant assistance to go with the
mandate. For instance, Congress has appropriated more than $65
billion to build sewage treatment facilities to meet the
secondary treatment requirement imposed by the 1972 amendments
to the Clean Water Act. No similar assistance has been provided
through the Safe Drinking Water Act. Some other programs,
notably the Rural Utilities Service in the Department of
Agriculture (called the Farmers Home Administration, until
recently), have provided substantial assistance for development
of rural water and wastewater systems. USDA has provided more
than $4 billion in grants and $12 billion in loans for drinking
water supply and wastewater treatment plants since the mid-
1970s.
In early 1993, President Clinton proposed creation of
State Revolving Loan Funds for drinking water capital
investments modeled after the loan funds created under the
Clean Water Act in 1987. The bill authorizes $600 million in
fiscal year 1994 and $1 billion per year through fiscal year
2003 for this new SRF program. This authorization is sufficient
to cover the capital investments in treatment needed to comply
with Federal health standards. EPA appropriations bills for
fiscal years 1994 and 1995 included funds for this new SRF
program, pending authorization. Priority funding would go to
projects to address the most serious public health problems and
to communities most in need of assistance, as determined by the
States. And in contrast to the SRF program under the Clean
Water Act, States may provide grants to systems that cannot
afford to repay loans.
Small Systems
Many small public water systems have difficulty complying
with Federal drinking water regulations, in some cases due to a
lack of technical expertise and financial resources for
treatment and monitoring.
As with most public utilities, there are significant
economies of scale in drinking water supply. EPA and the
Congressional Budget Office have published estimates indicating
that systems serving more than 10,000 people experience costs
that average less than $20 per household per year to comply
with the current requirements of the Safe Drinking Water Act.
By way of comparison, the average annual incremental household
cost to comply with the requirements of the Safe Drinking Water
Act for systems serving 25 to 100 persons is $145. Costs for
some systems may be much higher than these national averages.
In addition to the loans and grants available through the
new SRF program discussed above, S. 1316 will reduce the
burdens faced by small systems in several ways:
States are authorized to grant variances to small
systems that cannot afford to comply with national
primary drinking water regulations;
States are to adopt capacity development
strategies to assist small systems in attaining the
technical, financial and managerial capacity that
will make it possible to comply with the Act;
a portion of the SRF funds may be set aside for
technical assistance to small systems and the cost
of training operators may be included in the SRF
grant or loan;
States may reduce monitoring requirements for many
contaminants by 75 percent for small systems that
do not detect a contaminant in the first test of a
quarterly series; and
the standard for radon (that will affect mostly
small systems served by ground water sources) is
set at 3000 pCi/L rather than 300 pCi/L as proposed
by EPA in 1991.
Selection of Contaminants for Regulation
Because EPA had failed to take action to set national
standards for contaminants that were of public health concern,
the 1986 Amendments listed 83 specific contaminants and
required EPA to set standards for these substances by 1989.
That legislation also directed EPA to set standards for an
additional 25 contaminants every 3 years beginning in 1991.
This single provision of the Safe Drinking Water Act has
provoked more critical comment than virtually any other element
of environmental law. Some of the 83 contaminants for which
standards are required occur so infrequently in public water
systems that the costs of monitoring (for a substance not
present) far outweigh any health benefit that could be realized
at the few systems that may detect the contaminant. In other
cases, the available science is so uncertain that standards
incorporate extravagant margins of safety (30,000-fold for one
contaminant) making it impossible to assert that expenditures
to implement the regulation are a public health necessity.
Finally, the mandate that EPA set standards for an additional
25 contaminants every 3 years regardless of the threat posed by
these contaminants in drinking water is for many the
quintessential example of an arbitrary Federal law imposing
burdens on consumers and the taxpayers of other governments
with no rational relationship to the public benefits that might
be realized.
Governor George Voinovich of Ohio clearly stated this
view at the Committee's hearing on October 19, 1995:
``The Safe Drinking Water Act is a perfect example
of an arbitrary environmental statute in dire need of
reform. After all, the very essence of the bill is a
requirement that EPA promulgate 25 new contaminants
every 3 years that communities must test for,
regardless of whether or not they actually occur in the
region's drinking water.
``At this untenable pace local communities could
have to monitor as many as 161 contaminants by 2001.
Instead of prioritizing health risks and providing the
means to address them, the current law is a one-size-
fits-all program. It forces our water quality experts
to spend scarce resources searching for dangers that
often do not exist rather than identifying and removing
real health risks from our drinking water.''
S. 1316 repeals the requirement that EPA regulate an
additional 25 contaminants every 3 years replacing it with a
new selection process that gives EPA the discretion to identify
contaminants that warrant regulation in the future. The
selection process has several elements including:
every 5 years EPA is to publish a list of high
priority contaminants that should receive
additional study;
EPA may require monitoring at public water systems
for up to 20 unregulated contaminants to gather
information on the occurrence of contaminants in
public water systems;
EPA is to maintain a national occurrence database
including information on regulated and unregulated
contaminants;
decisions made by EPA under the Act are to be
guided by new principles for sound science;
EPA is to set aside $10 million from the annual
appropriation for SRF grants to conduct health
effects research on contaminants that are
candidates for regulation; and
every 5 years EPA is to make regulatory decisions
for at least 5 contaminants announcing whether they
warrant regulation or not.
Standard Setting
Under current law, EPA establishes drinking water
standards through a two-step process. First, the Administrator
identifies the maximum contaminant level goal (MCLG) reflecting
a concentration of the contaminant in drinking water at which
no adverse effects to the health of persons will occur. Second,
the Administrator sets an enforceable maximum contaminant level
(MCL) as close to the goal as feasible.
Feasible means that the level can be reached by large,
regional drinking water systems applying best available
treatment technology to raw water sources that are
contaminated. EPA takes costs into account in identifying best
available technology. The treatment system must be affordable
on a per household basis for very large systems. With one
exception, the treatment technologies that EPA has used to set
standards cost less than $100 per household per year for very
large systems. This approach to standard setting is used
because 80 percent of the population receives its drinking
water from large systems and safe water can be provided to this
portion of the population at very affordable costs.
However, the standard setting authority of current law
has been criticized for three principal reasons. First,
treatment technologies that are affordable to large systems may
be unaffordable and impose substantial per household costs at
small systems.
Second, for some contaminants this approach to standard
setting can impose large aggregate costs nationwide while
producing only small gains in public health risk reduction.
This is especially true of substances that are regulated for
their cancer-causing effects, that have a low potency and that
occur at low concentrations principally in the ground water
relied upon by small systems. Although the treatment technology
may be entirely affordable for large systems, the incremental
health benefits of addressing already small risks often do not
justify the aggregate costs. The only identifiable benefit that
can be stated for some standards is to prevent a handful of
cancer cases nationwide, in some cases at costs that exceed
tens of millions of dollars per cancer case avoided.
Third, use of some treatment technologies may actually
increase risks from other contaminants. For instance, chlorine
used to kill pathogenic organisms may result in an increased
cancer risk from disinfection byproducts. Read literally, the
statute requires EPA to ``over control'' some contaminants to a
degree that overall public health risks from drinking water
would be greater using the best available technology that is
feasible than risks would be if the standard were set at a less
stringent level.
S. 1316 includes several provisions to respond to these
concerns:
States may provide variances to small systems that
cannot afford to comply with national standards;
EPA may balance competing risks from several
contaminants, if the treatment technology to
control one would increase risks from others;
EPA may set a standard at a level less stringent
than feasible, if the costs of a standard
reflecting application best available technology
are not justified by the benefits; and
the unique characteristics and risks of arsenic,
radon and sulfate are addressed with special
standard setting provisions.
Although the bill includes new risk assessment and cost-
benefit considerations to address unresolved problems in the
standard setting authorities of the Act, EPA may not use this
new authority to relax any existing standard, unless new
science indicates that a less stringent standard would be
equally protective of public health (i.e., the concentration at
which no adverse effects occur is re-established at a higher
level based on new scientific information).
Radon
Radon is a naturally-occurring gas that may be a
contaminant in drinking water systems, especially small
systems, served by ground water supplies. When water is used in
the home for bathing, cooking and washing, the radon evaporates
into the indoor air. Inhalation of this radon may present an
increased risk of lung cancer. Radon ingested with drinking
water may also present a cancer risk.
The 1986 Amendments required EPA to set a standard for
radon. In 1991, EPA proposed a standard of 300 picocuries per
liter (pCi/L) and estimated the compliance cost at $272 million
per year nationwide. The drinking water community argued that
the costs may be much higher than EPA estimated. Radon from
drinking water typically contributes less than 5 percent of the
radon gas in indoor air. Since a significant effort is not
being made to reduce the other 95 percent of radon (where costs
per cancer case avoided may be much less), the drinking water
standard was viewed as too stringent to be justified. Congress
has postponed promulgation of this regulation since 1992.
The bill sets a standard of 3000 pCi/L for radon,
reducing the indoor inhalation risk from radon in drinking
water to a level commensurate with the risk of breathing radon
in outdoor air.
Monitoring
Many drinking water systems, especially small systems,
are concerned with the high costs of monitoring to establish
compliance with new standards for organic chemicals and
pesticides. In fact, the greatest compliance costs for many
small systems are for monitoring, not treatment. If a
contaminant is not found through testing, no treatment is
required, and there are no further costs. The existing
authority to grant waivers from monitoring requirements has not
been effectively used by all States, resulting in monitoring
costs that are higher than necessary for many systems.
To respond to these concerns, the reported bill makes
four changes in monitoring requirements. First, it allows
States to develop alternative monitoring rules that would be
used in lieu of the national requirements. This provision will
allow States to design less stringent monitoring rules that
assure compliance and enforcement while taking into account
special circumstances in the State. More efficient use of
sampling and laboratory capacity will reduce costs to water
systems.
Second, the bill provides the authority for small systems
serving less than 10,000 persons to reduce testing frequencies
for many contaminants from four times in a monitoring cycle to
once, if no contaminants are found in the first test and they
are unlikely to be found thereafter. This cuts monitoring costs
for small systems by up to 75 percent. This authority was
available to systems serving fewer than 3,300 persons during
fiscal year 1993.
Third, EPA is directed to review no fewer than 12 of its
national monitoring requirements within 2 years to determine if
they should be modified, based on the latest occurrence and
health effects data.
Fourth, the bill restructures the program for monitoring
of unregulated contaminants, dropping the requirement that all
systems monitor and providing that States may select a
representative sampling of small systems (serving a population
of 10,000 or less) for this type of monitoring. EPA is to set
aside $2 million from each annual appropriation for SRF grants
to pay for the cost of testing samples taken from these small
systems.
State Funding
A major problem with the drinking water program is lack
of sufficient funds to run programs at the State level.
Although there is considerable flexibility to tailor
requirements and reduce costs under the Act and the regulations
that EPA has issued, many States have been unable to take full
advantage of this flexibility because they lack the staff and
resources to conduct the science and fact-gathering needed to
support variances, monitoring waivers and other discretionary
features of the drinking water program that can reduce costs
for local public water systems.
All the States, except Wyoming and the District of
Columbia, have been granted primacy for most rules and are
implementing the law today. While EPA provides grants to assist
States to carry out their public water system supervision
responsibilities, funding from Federal and State sources in
fiscal year 1993 was slightly less than half the amount needed
to implement effective programs in all States. Unless more
resources are devoted to the effort at the State level, the
most cost-effective program will remain an elusive goal for
many States.
To reduce the funding shortfall and allow time for States
to increase their own financial capacity, S. 1316 increases the
authorization for grants to support State Public Water System
Supervision (PWSS) programs from $40 million (in current law)
to $100 million annually. Congress appropriated $70 million for
fiscal year 1995 to make these grants.
More importantly, the bill also authorizes States to use
a portion of their SRF funds to administer the PWSS program.
Each State has the discretion to take from its SRF grant an
amount equal to the amount of its PWSS grant to carry out the
oversight program. While this provision will result in fewer
dollars available for loans to build treatment plants for
public water systems, the ability of a State to implement
effectively the new authorities for alternative monitoring
requirements, small system variances, capacity development and
technical assistance may produce significant cost savings for
all drinking water systems in the State.
S. 1316 authorizes the Governor of each State to transfer
up to 50 percent of the funds in the State's drinking water SRF
to the clean water SRF or to transfer an equivalent dollar
amount from the clean water SRF to the drinking water fund.
This provides States flexibility in the use of the loan funds
to assure that their highest infrastructure priorities are
addressed.
Section-by-Section Summary
section 1. short title; table of contents; references
Section 1 includes the title of the bill, a table of
contents for the bill and provides that amendments made by the
bill are to title XIV of the Public Health Service Act. The
bill is entitled ``The Safe Drinking Water Act Amendments of
1995''.
section 2. findings
The Congress finds: that a substantial number of public
water systems are having difficulty meeting the requirements of
the Safe Drinking Water Act because of technical and financial
limitations and need greater assistance; that modifications in
administration of the program could promote a more productive
partnership with the States; that the quality of the science
supporting drinking water standards needs improvement; that
risk assessment and benefit-cost analysis are important and
useful tools to improve the efficiency and effectiveness of
drinking water regulations; and that Federal, State and local
governments need additional resources and more effective
authority to improve compliance with the Act.
section 3. state revolving loan funds
Summary
The bill establishes a new State Revolving Loan Fund
(SRF) program for drinking water infrastructure. The Federal
Government will provide capitalization grants to State-run
SRFs. States will use these funds, along with their own
contributions, to make grants and loans to public water systems
to facilitate compliance with the Safe Drinking Water Act. The
bill includes an authorization of $1 billion per year through
fiscal year 2003 for capitalization grants.
States may receive grants if they establish a loan fund
and agree to conditions, including providing a 20 percent State
match, use of loans in compliance with an intended use plan,
and proper financial management.
In fiscal years 1994 through 1997, funds are allocated
among the States based on a grant formula used to allocate
funds for Public Water System Supervision (PWSS) grants, a
long-standing grant program that provides funds to the States
to support administration and enforcement of national primary
drinking water regulations. For fiscal year 1998 and after,
funds are to be allocated according to a new formula developed
by the Administrator based on a survey of drinking water needs
in each State. This needs assessment is already underway.
In addition to the allocation for States, 1.5 percent of
the Federal grant funds are reserved for Indian tribes and 0.5
percent of the funds are reserved for territories. Indian
tribes, territories, and the District of Columbia may receive
direct grants rather than loans.
Each State may reserve a portion of its annual grant to
provide technical assistance to small water systems. Assistance
may include financial management, planning and design, source
water protection programs, system restructuring, and other
measures for capacity development or water treatment.
Projects eligible to receive loan and grant assistance
are capital expenditures for (1) compliance with national
primary drinking water regulations; (2) upgrading of drinking
water treatment systems; (3) replacement of private wells where
they present a significant health threat; and (4) restructuring
of systems and the development of alternative sources of water
supply.
Drinking water systems eligible for assistance are those
public water systems (as defined in the Act) that are community
water systems (whether publicly or privately owned), publicly
owned systems (except systems owned or operated by an agency of
the Federal Government) and noncommunity water systems that are
owned by a nonprofit organization. States may not provide
assistance to systems with a history of noncompliance, unless
steps are taken to assure that the system will have the
capacity to comply with requirements of the Safe Drinking Water
Act over the long term.
States may assist disadvantaged systems, including both
large and small systems, through grants and forgiveness of loan
principal. Each State is to develop its own affordability
criteria to determine which public water systems are eligible
for grants, rather than loans. The total amount of grants and
loan forgiveness provided by a State in any fiscal year may not
exceed 30 percent of the amount of its capitalization grant
from EPA.
A State may use a portion of the capitalization grant to
support its Public Water System Supervision program. A State
may also use up to 15 percent of its annual grant to support
programs for source water protection and capacity development.
Prior to making grants to States for SRFs, the
Administrator is authorized to reserve a portion of the
appropriation for research, monitoring at small systems and
technical assistance.
Discussion
Complying with drinking water standards and maintaining
the effective operation of drinking water systems is becoming
increasingly expensive. The EPA has estimated that the total
capital investment needed to comply with current drinking water
standards is approximately $8.6 billion. New regulations for
disinfection byproducts, radon, arsenic and disinfection of
ground water supplies may substantially increase these costs.
Small systems have the most difficult time financing
capital improvements needed to meet drinking water standards.
These systems have limited access to the bond market and
limited financial management capabilities. In addition, because
small systems do not benefit from the economies of scale
available to large systems in drinking water treatment, the per
household costs of a capital project at a small system can be
very high and result in dramatic increases in water rates.
Section 3 of the bill establishes a new grant program to
assist public water systems with the infrastructure investments
necessary to provide safe drinking water. The grants are made
to States to capitalize revolving loan funds to help finance
drinking water projects. The new loan funds are modeled after
the successful loan fund program now in place under the Clean
Water Act. The new SRF program for drinking water was first
proposed by President Clinton in early 1993. Congress has
previously endorsed this initiative by making advance
appropriations for this purpose for fiscal years 1994 and 1995.
The grant program is authorized in a new part G of title
XIV of the Public Health Service Act (sections 1471 through
1478) that contains all of the authority necessary to carry out
the program. The grant program is to be administered by EPA.
Section 1471 provides that the Administrator may enter
into a capitalization grant agreement with a State where a
State establishes a loan fund and agrees to conditions
including providing a 20 percent State match, use of loans in
compliance with an intended use plan, and proper financial
management.
All of the States already operate revolving loan funds
for wastewater treatment plant construction under the Clean
Water Act. A State may consolidate management of the new
drinking water SRF with its existing wastewater treatment loan
fund, provided that accounting for drinking water loans and
repayments remains separate. A Governor of a State may transfer
up to 50 percent of the funds provided to the drinking water
loan fund each year to the loan fund authorized under the Clean
Water Act. An equal dollar amount may be taken from Federal
grants to the clean water fund in a State and transferred to
the drinking water fund. The authority to establish priorities
for loans and grants to public water systems is to remain with
the State agency that has primary enforcement responsibility
for the drinking water program.
Section 1472 directs the Administrator to make
capitalization grants to eligible States and provides for the
allocation of funds among the eligible States and territories.
In fiscal years 1995 through 1997, funds are to be allocated
among the 50 States and Puerto Rico according to a formula now
used for the Public Water System Supervision (PWSS) program
under section 1443. However, the minimum share for each State
for a capitalization grant under part G shall be 1 percent of
the appropriation (after the reservations made pursuant to
section 1478(b)-(d) and this section). A minimum proportionate
share of 1 percent is also to be provided to the State of
Wyoming even though it does not receive a PWSS grant (because
it has not taken primacy).
For fiscal year 1998 and after, funds are to be allocated
according to a new formula developed by the Administrator based
on a survey of drinking water needs in each State. The survey
of State needs for this new formula is already underway. This
formula shall also include a minimum State share of 1 percent
for each of the 50 States and Puerto Rico.
In addition, 1.5 percent of funds are reserved for grants
to Indian tribes, and 0.5 percent for grants to the District of
Columbia and the territories. Indian tribes, territories, and
the District of Columbia may receive direct grants, rather than
capitalization grants for the purpose of making loans.
States are authorized to reserve up to 2 percent of
funds, or $300,000, whichever is greater, to provide technical
assistance to water systems serving a population of 10,000 or
less. Technical assistance may include financial management,
planning and design, source water protection, or system
restructuring.
The Administrator is to withhold a portion of the SRF
capitalization grant from States that have not adopted
authority to prevent systems that lack the technical,
managerial and financial capacity to comply with the Act from
commencing operation as required by section 1418(a). The amount
withheld is 5 percent for fiscal year 1999, 10 percent for
fiscal year 2000, and 15 percent for each fiscal year
thereafter. Funds withheld are reallocated to other States that
have adopted this authority.
Section 1473 defines the projects eligible for assistance
from the loan fund. Projects eligible to receive loan
assistance are capital expenditures for:
compliance with national primary drinking water
regulations;
consolidation of systems and use of an alternative
source of water supply;
upgrading of drinking water treatment systems; and
replacement of private wells with a public water
system where the private wells present a
significant health threat.
Land acquisition is not eligible, unless the land is
needed for a treatment facility. Other costs associated with
building or acquiring water treatment facilities including
engineering and economic studies, legal work and other costs
typically associated with capital projects are eligible for
assistance. Associated costs that are eligible for assistance
also include training for system operators.
The bill precludes assistance to systems that have a
history of past violations and that do not have the technical,
managerial and financial capacity to comply. Assistance may
only be provided in these cases where the owner or operator of
the systems agrees to undertake the changes in operations that
the State primacy agency determines are necessary to comply
with the requirements of the Act over the long-term. The
operational changes may include changes in ownership,
management, accounting, rates, maintenance, consolidation with
another system, and the development of an alternative water
supply.
Drinking water systems eligible for assistance are:
community water systems (whether publicly or privately owned);
all publicly-owned systems, except systems owned or operated by
Federal agencies; and noncommunity water systems owned by
nonprofit organizations.
Types of assistance available through the loan fund are:
loans (provided that interest rates do not exceed
market rates; that repayments start 1 year after
project completion; that there will be a dedicated
source of revenue to repay the loan; and that
repayment is made in 20 years, unless the recipient
is a disadvantaged community and receives a loan
with a 30-year repayment schedule);
refinancing of an obligation incurred for an
eligible project after October 14, 1993 or incurred
to comply with regulations established pursuant to
the 1986 Amendments;
guarantee of a market loan or the purchase of
insurance for such a loan;
a source of revenue or security for a State
obligation related to the loan fund; and
a source of revenue or security for the payment of
interest on a local obligation.
Experience under the SRF program of the Clean Water Act
indicates that some communities cannot afford to repay a loan,
even at low interest. The bill addresses this problem by
allowing States to assist disadvantaged communities through
forgiveness of loan principal (including all of the loan
principal for a particular project). Each State is to develop
affordability criteria to identify disadvantaged communities
eligible for principal forgiveness. A disadvantaged community
may be a large city or a small, rural public water system. The
Administrator may publish information to assist States in
developing affordability criteria. The total amount of the loan
forgiveness in a fiscal year may not exceed 30 percent of the
amount of the capitalization grant received by the State for
that year.
States may use a portion of their SRF capitalization
grants for land acquisition and to support source water
protection programs and capacity development strategies. A
State may use up to 15 percent of its grant for these purposes
in combination, but not more than 10 percent for any one of the
following activities:
to acquire land or a conservation easement from a
willing seller or grantor if the purpose is to
protect source waters for drinking water systems;
to implement the recommendations of a source water
quality protection partnership that has submitted a
petition approved by a State with a program under
section 1419(d);
to make expenditures from grants received for
fiscal years 1996 and 1997 to delineate and assess
source water protection areas; and
to make expenditures to implement capacity
development strategies developed under section
1418.
Funds used for land acquisition and to implement source
water quality protection partnership recommendations may only
be distributed in the form of loans to public water systems
that are to be repaid to the fund according to the provisions
of this part. The public water system may make these funds
available in the form of assistance to other participants in a
partnership.
Section 1474 provides that each State may reserve up to 4
percent of the capitalization grant for administration of the
fund.
Each State may also expend funds from its annual
capitalization grant to administer the Public Water System
Supervision program in the State. Eligible expenditures also
include the cost of developing and implementing source water
protection programs and capacity development strategies. There
is a limitation on the amount of funds from an SRF grant that
may be expended for these purposes equal to the amount of the
PWSS grant received by the State under section 1443 for that
year. The bill also includes a maintenance of effort
requirement to ensure that States will not reduce their own
appropriations as the Federal commitment increases. States may
not make any use of the capitalization grants for these
purposes, unless the Administrator determines that the State
supports the PWSS program with its own funds in an amount not
less than the amount provided in 1993.
Each State is to develop an intended use plan for its
fund. The plan is to establish a priority list for projects and
provide that priority be given to projects that address the
most serious risks to human health, those necessary to achieve
compliance with the requirements of the Act (including
filtration) and those that assist systems most in need on a per
household basis according to State affordability criteria. The
priority list should be the focus for planning and financing
decisions and the public is to be given an opportunity to
review and comment on each annual intended use plan, including
the priority list and the list of projects that the State
intends to assist.
Section 1475 directs EPA and the States to conduct
various reports, studies and audits. The bill requires an
annual review or audit of the funds provided to each State. The
State may conduct this audit pursuant to the Single Audit Act
of 1984 with the expectation that this will significantly
reduce the oversight costs associated with the audit. Each
State is to file a biennial report with EPA on its use of the
funds provided by the new SRF program.
The Administrator is to conduct a drinking water needs
assessment. The purpose of this assessment is to provide the
information that EPA will use in the future to allocate funds
among the States and to determine whether the authorizations
and appropriations made under this part are sufficient to meet
drinking water infrastructure investment needs.
EPA has already begun to collect information for the
first needs assessment. The assessment is to be completed
within 1 year of enactment and to be repeated every 4 years
thereafter. The needs to be assessed for the purpose of future
allocation formulas are only those needs that would be eligible
for assistance under section 1473(b) at public water systems
that are eligible for assistance. Other projects that might
receive funding under other provisions of part G (for instance
those that might be assisted through one of the set asides)
would not be factored into the needs assessment categories that
are to be used to establish allocation factors.
The Administrator is to submit an evaluation of State
loan funds established under this part with the appropriations
request submitted for the Agency for fiscal year 2001. The
purpose of this evaluation is to provide for modifications to
the program in future authorization bills.
Section 1476 provides that the inability of a system to
receive assistance from the loan fund or any other loan or
grant program does not alter the obligation of the system to
comply with all applicable drinking water standards and
requirements of this Act in a timely manner. Compliance in a
timely manner includes compliance with construction schedules
established in drinking water regulations, schedules associated
with variances for small systems and exemptions provided under
section 1416. This provision is included in light of the
experience with the construction grants program under the Clean
Water Act. The failure of many sewage treatment plants to meet
secondary treatment requirements established by that law was
sometimes overlooked, if the city or county was on a priority
list and waiting to receive a Federal grant or loan for the
treatment equipment. Section 1476 makes clear that compliance
with Federal health standards under the Safe Drinking Water Act
is not to be delayed while public water systems wait for
assistance from the new drinking water SRF program.
Section 1477 provides authority for the Administrator to
publish guidance and promulgate regulations necessary to
implement the new revolving loan fund program.
Section 1478 authorizes appropriations for capitalization
grants to States in the amount of $600 million in fiscal year
1994 and $1 billion in each fiscal year 1995 through 2003. The
bill retains authorizations for fiscal year 1994 and 1995
because Congress made advanced appropriations (not to be
distributed to the States pending an authorization for the
program) for a drinking water SRF in both of those years.
Although the largest portion of these appropriations was
subsequently rescinded when an authorization was not enacted,
$225 million remains available from the funds authorized for
those years. These funds will be allocated to the States when
the program is authorized.
The total amount of the authorization for the new SRF
program is $9.6 billion. EPA's report on the drinking water
program issued in September of 1993 indicated that the capital
investment needed to comply with current drinking water
regulations is approximately $8.6 billion and may increase
substantially as a result of proposed regulations for radon and
disinfection byproducts. Provisions in the bill with respect to
radon will dramatically decrease compliance costs for that
regulation when it is issued. The Stage I rule for disinfection
byproducts is now behind schedule and would not be applicable
for an additional 3 years after promulgation. Therefore, the
SRF grants authorized in this bill would, if appropriated,
provide sufficient capital for grants and loans (at low or no
interest) to support the capital investments that must be made
by public water systems to comply with the Act during the
authorization period covered by this bill (1994 through 2003).
Section 1479(b) directs the Administrator to reserve $10
million from each annual appropriation for SRF grants to be
used to conduct health effects research on drinking water
contaminants. In allocating these funds to specific research
projects, EPA is to give priority to research on the health
effects of Cryptosporidium, disinfection byproducts, arsenic
and implementation of the research plan for subpopulations at
greater risk.
Although this set aside for health effects research will
drain funds from capital assistance to local public water
systems, the national organizations representing cities,
counties and drinking water suppliers fully support the set
aside. Testifying for the National League of Cities before the
Committee on October 19, 1995, Mayor Jeffrey Wennberg of
Rutland, Vermont, said:
``We also support the proposed set asides included
in the Drinking Water SRF in S. 1316. In fact, NLC
recently adopted policy calling for exactly these types
of activities to be financed by any new funding made
available for drinking water purposes...The amendments
also recognize both the complexities and uncertainties
associated with the contaminants arsenic, radon and
sulfate. The special treatment of these three
contaminants, coupled with the authorization to set
aside $10 million per year for research, focusing on
Cryptosporidium and disinfection by-products, is a
greatly appreciated response to NLC's long-standing
call for sound science before rule making.''
The bill (section 19(b)) establishes new authority for
monitoring for contaminants that are not currently regulated
under the Safe Drinking Water Act. One purpose of this new
monitoring program is to gather information on the occurrence
of contaminants in drinking water to assure that future
regulations are based on sound information. However, monitoring
can be costly. The bill requires systems serving more than
10,000 persons to bear the cost of this monitoring.
Monitoring for systems serving fewer than 10,000 is
designed to avoid the imposition of costly new mandates. First,
only a representative sample of these systems in each State (to
be selected by the State) will be required to conduct
monitoring for unregulated contaminants. Second, the bill
includes a set aside of $2 million from the annual SRF
appropriation to defray testing costs for these systems. EPA
may allocate these costs among the States and to testing
laboratories to pay for testing costs associated with this new
monitoring program.
The bill includes a third set aside from the annual SRF
appropriation to provide technical assistance to small systems.
This set aside is coupled with the authorization for technical
assistance grants established in section 1442(g). EPA has made
grants under this latter authority to the National Rural Water
Association and the various regional rural community assistance
programs to provide on-site assistance to public water system
operators.
A set aside will only be made for technical assistance
when the annual appropriation for the SRF is $800 million or
greater. The set aside is to be equal to the amount necessary
to close the gap between the appropriation made under section
1442(g) and the amount authorized ($15 million per year through
2003). However, the set aside cannot be greater than
$10,000,000 or 2 percent of the appropriation for SRF grants,
whichever is less.
section 4. selection of contaminants; schedule
Summary
The Safe Drinking Water Act Amendments of 1986 required
EPA to issue standards for 83 specific contaminants by not
later than 1989. That work has largely been completed, but EPA
has yet to issue new standards for arsenic, sulfate, radon and
other radionuclides. The 1986 Amendments also required EPA to
establish standards for an additional 25 contaminants every 3
years beginning in 1991. EPA has not issued any standards to
comply with this requirement, but has proposed regulations for
12 disinfection byproducts and for Cryptosporidium in partial
fulfillment of this duty. An additional 13 contaminants (known
as the Phase VIb rule) are under study.
The bill repeals the requirement that EPA regulate an
additional 25 contaminants every 3 years. EPA is required to
complete regulations for 12 disinfectants and disinfection
byproducts, the Enhanced Surface Water Treatment Rule and a
national primary drinking water regulation for Cryptosporidium.
Not later than July 1, 1997, the Administrator is to
publish a list of high priority contaminants not currently
regulated. EPA is to develop a research plan for each of the
listed contaminants to acquire information on health effects
and the occurrence of the contaminant sufficient to determine
whether the contaminant should be regulated under the Act.
Beginning in the year 2001, and in 5-year cycles
thereafter, EPA is required to make a regulatory decision with
respect to at least 5 of the listed contaminants. EPA may
decide that the contaminant should not be regulated, that there
is insufficient information to make a determination, or that a
maximum contaminant level or treatment technique for the
contaminant should be promulgated under the Safe Drinking Water
Act. The Administrator is to establish national primary
drinking water regulations for those contaminants that occur at
concentration levels and at frequencies of public health
concern.
Discussion
During the early 1980's, EPA did not fulfill expectations
for the Federal role in the drinking water program. The 1986
Amendments to the Safe Drinking Water Act, which required
standards for a specific list of 83 contaminants and
regulations for another 25 contaminants every 3 years, came in
response to the failure of EPA to carry out the intent of the
1974 Act and reflected a broad consensus, shared by officials
of State and local government, that the drinking water program
needed a mandated schedule. Concerns are now expressed about
the cost impact of the 1986 Amendments. The bill sets forth a
balanced Federal role that recognizes the value of a national
government conducting health and occurrence research for use in
all 50 States and to all 195,000 drinking water suppliers while
at the same time recognizing the cost impacts that are imposed
when a national primary drinking water regulation is
promulgated for any particular contaminant.
As noted above, current law (section 1412(b)(3)) requires
the Administrator to promulgate national primary drinking water
regulations for 25 additional contaminants every 3 years
beginning in 1991. The law also requires the Administrator to
maintain a ``drinking water priority list'' of contaminants
that might be considered for regulation. The most recently
published list contains 77 contaminants. Although EPA has not
met the requirement to promulgate regulations for 25 additional
contaminants as yet, it is under court order to propose
standards for disinfection byproducts (as discussed above) and
is working on a second group of 13 contaminants (called Phase
VIb) to establish maximum contaminant levels.
The bill repeals these requirements of current law.
Requirements to establish national primary drinking water
regulations for disinfectants and disinfection byproducts are
retained. The requirement to promulgate additional standards
(including standards for the remaining contaminants in the
first 3-year cycle) is replaced with a new process to select
contaminants, collect information and determine whether
regulation is appropriate.
Under the bill, future standards would be developed in 5-
year cycles. At the beginning of the cycle, the Administrator
would publish a list of contaminants. The Administrator would
select the contaminants of greatest public health concern based
on available information with respect to their adverse effects
on human health, the occurrence of the contaminants in public
water systems and the levels at which the contaminants are
known to occur.
The initial selection of contaminants for the list and
collection of information on the frequency and level of
occurrence in public water systems is supported by the
provisions for a national occurrence data base and a new
program for monitoring unregulated contaminants, as discussed
below.
The Administrator is not required to establish standards
for the listed contaminants, but is required to make a
determination whether regulations are appropriate to protect
human health. The Administrator is to review available
information and make a determination with respect to the need
for regulation for at least 5 contaminants every 5 years
beginning not later than the year 2001. If the Administrator
determines that available information is not sufficient to make
a determination, the Administrator may conduct studies and
gather additional information over a period extending for up to
5 years after the determination was originally required.
If the Administrator decides that a national primary
drinking water regulation for a contaminant is needed to
protect public health, the regulation is to be promulgated
within 2 years of the determination. A determination by the
Administrator that a regulation is not needed is reviewable
under the provisions of section 1448. The court shall not set
aside the Administrator's determination not to issue a
standard, unless the court finds that the decision is arbitrary
and capricious.
One purpose served by these provisions for future
standards is to assure that the Agency continues to conduct the
health effects and contaminant occurrence research that is
necessary to protect the quality of the nation's drinking water
supplies. By establishing a nondiscretionary duty for the
Administrator to name, study and make regulatory determinations
for a minimum number of contaminants over repeated cycles, the
bill assures that funds will be budgeted and appropriated to
carry out the Federal Government's principal responsibility in
safeguarding the quality of drinking water.
In partial fulfillment of the obligation to promulgate
standards for an additional 25 contaminants every 3 years, the
Agency has been preparing regulations for approximately 12
contaminants that result from the disinfection of drinking
water (treatment, generally with chlorine, to remove microbial
contaminants). The Agency established a maximum contaminant
level for total trihalomethanes, one type of disinfection
byproduct, in 1979, and the current rulemaking would include a
revision of that standard.
To facilitate the rulemaking process the Agency has
conducted a regulatory negotiation to arrive at a consensus
proposal. The negotiation included representatives from State
and local government organizations, the drinking water supply
community and public interest groups. The negotiation resulted
in a proposed rule for disinfectants and disinfection
byproducts and a series of other regulatory actions.
The agreement reached by the parties to this negotiation
includes a schedule for the development and promulgation of
several regulations including an information collection rule,
an enhanced surface water treatment rule and a two-stage
rulemaking for the national primary drinking water regulation
for disinfectants and disinfection byproducts. EPA has already
fallen behind the schedule set out in the agreement principally
because of difficulties in developing analytical methods for
Cryptosporidium.
The bill requires EPA to complete each one of the
rulemakings called for in the agreement. The requirement is
nondiscretionary and can be enforced by a court pursuant to the
citizen suit authorities of section 1449 of the Act. However,
since each step in the rulemaking is tied to information
gathered in the previous step, the bill provides that the
schedule for actions is to be modified whenever a particular
step lags behind the otherwise agreed upon date. In response to
a citizen suit, a court may compel EPA to act to complete a
particular action by a date that is determined by reference to
the time interval that is provided in the agreement since the
last required action was completed. EPA may accelerate the date
for some actions completing them more quickly than the interval
established by the agreement would otherwise provide, but only
if EPA has consent from all parties to the agreement.
section 5. risk assessment, management, and communication
Summary
The bill requires improvements in the scientific
foundations for drinking water standards and better public
communication of the potential risks of adverse health effects
associated with contaminants in drinking water.
The Administrator is to conduct a cost-benefit analysis
for each national primary drinking water regulation containing
a maximum contaminant level (MCL) or treatment technique before
it is proposed. The analysis will also include consideration of
alternative MCLs or treatment requirements. The study is to
include a determination of the costs and benefits associated
with each alternative MCL or treatment technique relative to
the other standards under consideration.
The analysis is to incorporate information on risks to
subgroups that may be at greater risk than the general
population for adverse health effects as the result of exposure
to the contaminant. The Administrator is to publish and seek
comment on the study and is to use an advance notice of
proposed rulemaking to seek comment whenever the costs of the
national primary drinking water regulation are expected to
exceed $75 million.
The bill also directs the Administrator to use the best
available, peer-reviewed science in carrying out the Act and
requires the Administrator to publish information with each
national primary drinking water regulation that gives the
public a broad framework for understanding the risks that may
be posed by the contaminants that are regulated.
Discussion
Considerable concern has been expressed with respect to
the scientific foundation for national primary drinking water
regulations. The concern is justified and some of the
responsibility lies with the Congress. EPA's failure to pursue
a deliberate schedule for standard-setting under the Act prior
to the 1986 Amendments prompted the Congress to require the
promulgation of standards for 83 contaminants by 1989. 22 of
these contaminants had previously been regulated. The other 61
were taken from two lists published by EPA in advance notices
of proposed rulemaking early in the 1980s. Although there was
some evidence to suggest that these contaminants may occur in
public water systems or that an adverse health effect may be
associated with ingestion, there were significant gaps in the
scientific information available for many of these
contaminants. The purpose of the notices published in the
Federal Register was to solicit information to close these
gaps.
Nevertheless, Congress mandated that standards be issued
for each substance (with 7 substitutions allowed). Information
that has come to light as the result of issuing national
primary drinking water regulations indicates that some of these
contaminants occur only infrequently in public water systems,
occur at levels well below any threshold for health effects, or
have not been sufficiently studied to establish reliable dose-
response relationships.
The bill makes changes in the contaminant selection
process to assure that future standards are based on better
science. These changes include new funds for health effects
research, monitoring authority for unregulated contaminants and
a national occurrence data base.
Section 5 of the bill adds to the scientific foundation
of future standards by imposing three requirements on EPA.
First, the Administrator is to use the best available, peer-
reviewed science and supporting studies to carry out all
activities under the Act. Many of the most important activities
including selecting contaminants for regulation, setting
standards, designing analytical methods and structuring
waivers, variances and exemptions are appropriately informed by
scientific studies. In these cases, the Administrator has a
duty to seek and rely upon the best available science and
information to support these decisions. Some decisions made by
the Administrator are not appropriately informed by science.
For example, the design of an allocation formula for the Public
Water System Supervision program or a decision to take
enforcement action with respect to violations of a particular
type do not depend on information produced by scientific
methods for their validity and this requirement does not apply
to those decisions.
The bill also requires the Administrator to use data that
has been generated through the use of accepted methods (as
described in this report for section 24). If an accepted method
is not available for a particular task, the Administrator may
rely on the best available method, provided that the
reliability of that method is appropriate to the decision that
is to be informed or supported by the data.
Second, the Administrator is to provide the public with
broader and more understandable information on the public
health risks that may be associated with contaminants regulated
under the Act. Risk assessments conducted by or for EPA follow
guidelines that are adopted only after thorough review and
public comment. Nothing in this section is intended to affect
or alter the scientific judgments that shape those guidelines.
However, the bill does require the Agency to do a better job of
explaining the alternative interpretations of the scientific
evidence that is used for, and produced by, risk assessments.
EPA is to publish a document with each standard-setting
regulation describing, to the extent practicable, uncertainties
and alternative risk estimates that put the regulation in a
broader public health context.
Third, the Administrator is to conduct a cost-benefit
analysis for each national primary drinking water regulation.
The preliminary analysis is to be published for comment at
least 90 days prior to the publication of a proposed rule. A
cost-benefit analysis is required both for rules that include
maximum contaminant levels and for those that impose treatment
technique requirements. The analysis is to consider and compare
the relative costs and benefits of alternative MCLs or
treatment techniques that may be issued under the standard-
setting authorities of the Act. This analysis is to be used for
the cost-benefit determinations required by section
1412(b)(4)(C).
In considering costs and benefits, the Administrator is
to consider both the quantifiable and nonquantifiable costs and
benefits of each alternative MCL or, if appropriate, treatment
technique. Nonquantifiable benefits are the beneficial results
of a regulation for which it is not possible to express a
monetary or other quantitative valuation. Nonquantifiable
benefits include considerations such as the value of human
life, the quality of life as it may be affected by impaired
cognitive development or physical disability, and the avoidance
of pain and suffering.
The absence of information about a particular benefit of
a regulation does not make that benefit nonquantifiable. Where
benefits that can be quantified (such as medical costs, lost
work days, or governmental response costs) are relied upon to
justify a rule, they must be quantified.
The Administrator is directed to establish a factual
basis in the rulemaking record to support the conclusion that
any nonquantifiable benefits relied upon to justify the costs
will occur; but the Administrator is not required to arrive at
any quantitative assessment of benefits of this type to support
a finding that they justify the costs of a rule.
In considering costs and benefits associated with the
control of a specific contaminant the Administrator may also
include consideration of the health risk reduction benefits
that are likely to occur from reductions in exposure to other
contaminants that will be removed by the treatment technology
that is used to set the MCL. However, the Administrator is not
to consider the benefits (or costs) that are attributable to
compliance with other proposed or promulgated regulations, if
those benefits and costs are considered in a determination as
to whether benefits justify costs under those regulations.
The cost-benefit study is to include a description of the
incremental costs and benefits for each alternative MCL, if
appropriate, or treatment technique under consideration.
Incremental costs and benefits are the costs and benefits that
accrue from the last increment of control. In describing these
values, it is important for the Administrator to also describe
the uncertainties in any point estimate using the information
that is available to support the rulemaking.
The cost-benefit analysis is also to explicitly consider
the possibility that some groups within the general population
will be more susceptible to adverse health effects as the
result of exposure to the contaminant in drinking water than
the general population. These groups include infants, children,
pregnant women, the elderly and individuals with a history of
serous illness. A new section 1442(l) is added to the Act to
support research for the inclusion of these considerations in
the cost-benefit analysis.
The bill also authorizes $35 million per year through the
year 2003 to the Office of Ground Water and Drinking Water at
EPA to support the risk assessments and cost-benefit studies
that will be required by sections 4 and 5 of the bill. The
Office currently spends approximately $20 million per year for
this purpose. Although the Safe Drinking Water Act has not
included an authorization for this purpose, the Committee is
recommending this authorization to signal the high priority
that it places on better science and analysis in support of
future drinking water regulations.
section 6. standard-setting; review of standards
Summary
The bill makes the following changes to the standard
setting authorities of the Safe Drinking Water Act:
EPA is authorized to set the maximum contaminant
level goal (MCLG) for a contaminant that is a known
or probable human carcinogen at a level other than
zero, if the Administrator determines that there is
a threshold below which there is unlikely to be any
increase in cancer risk and the MCLG is set at this
threshold level with an adequate margin of safety;
at the time that the Administrator promulgates a
maximum contaminant level (MCL), the Administrator
must also publish a determination as to whether the
benefits of the MCL justify the costs;
EPA is authorized to set a maximum contaminant
level at other than the level that is as close to
the goal as feasible, if application of the
treatment techniques at the feasible level would
increase health risks from other contaminants; this
authority may be used to set the MCL or treatment
technique for the contaminant and for other
contaminants at a level that minimizes the overall
health risk;
the Administrator is given discretionary authority
to establish less stringent standards (than
feasible), when the Administrator determines that
the benefits of a maximum contaminant level set at
the feasible level would not justify the costs to
systems that must comply with the standard or the
contaminant occurs almost exclusively in small
systems; if EPA uses this authority, the standard
is to be set at a level that maximizes health risk
reduction at a cost that is justified by the
benefits; standards may not be made less stringent,
unless new science demonstrates that health
protection will be maintained;
the authority to set less stringent standards
based on a benefit-cost determination is not
available for the regulation of disinfectants and
disinfection byproducts (in Stage I or II) or to
address the threat of Cryptosporidium; and
a determination that the health benefits of a
standard do or do not justify the costs can be set
aside by a court, only if it finds that the
Administrator's determination is arbitrary and
capricious.
The requirement in current law that the Administrator
periodically review and revise each national primary drinking
water regulation is extended from 3 years (in current law) to 6
years. Revisions to standards are to maintain or provide for
greater protection of human health. Existing standards may only
be made less stringent in the future, if new science
demonstrates that the current level of health protection can be
achieved by a less stringent standard.
Discussion
Standard-setting under the current Safe Drinking Water
Act is a two-step process. First, EPA identifies a
concentration level for a contaminant at which there will be no
adverse effect on human health. This is called the maximum
contaminant level goal or MCLG. For cancer-causing substances,
the MCLG has always been set at zero.
In a second step, EPA sets the actual enforceable
standard, called the maximum contaminant level or MCL, as close
to the goal as feasible. Feasible means the level that can be
reached using the best available treatment technology that is
affordable for large, regional drinking water systems.
This approach to standard-setting is taken because the
large majority of Americans (80 percent) receive their drinking
water from large systems and economies of scale in treatment
technology make safe water affordable.
On the other hand, this approach to standard setting has
caused problems with implementation of the Act. First,
standards written under this approach can impose very high
costs on households served by small systems. Second, for some
contaminants that occur at relatively low concentrations and
are regulated for their cancer-causing effects with a goal of
zero exposure, the current approach has led to high costs per
cancer case avoided. And third, treatment techniques employed
to reduce the risk from some contaminants may actually increase
the health risks posed by other contaminants in drinking water.
For instance, chlorination of drinking water to kill pathogenic
organisms increases cancer risks from chemicals, called
disinfection byproducts, that form in reaction with the
chlorine.
To address these problems, the bill provides EPA with
discretion to consider the benefits and costs and the potential
for off-setting health risks associated with proposed
standards. In addition to this standard-setting flexibility,
the bill amends the variance provisions of the law to ensure
that small systems are not required to employ treatment
technologies that are unaffordable for their consumers.
More specifically, the first change in the standard
setting authority of the Act would authorize the Administrator
to set a non-zero maximum contaminant level goal for a
contaminant that is regulated for its cancer-causing effects,
if the Administrator determines that there is a threshold of
exposure for that contaminant below which ingestion of the
contaminant in drinking water is not likely to cause any
increase in cancer risks.
Following the legislative history of current law, EPA has
always established MCLGs for contaminants with strong evidence
of carcinogenicity from drinking water exposure at zero. This
approach was mandated by the report of the Interstate and
Foreign Commerce Committee of the House of Representatives
filed with the bill that was enacted as the Safe Drinking Water
Act in 1974. The mandate is based on a Federal Government
policy, first recommended by Health, Education and Welfare
Secretary Arthur Fleming during the Eisenhower Administration,
that all exposure to carcinogens be prevented where possible,
because any exposure can contribute to a growth of a malignant
tumor. Although EPA applies this policy in the case of known
and probable human carcinogens, the Agency has not set a zero
MCLG for those substances with limited evidence of
carcinogenicity. In those cases, EPA has used an additional
margin of safety or a lifetime cancer risk estimate to reflect
the possibility of a cancer-causing effect in setting the MCLG.
Although this principle (that any exposure to a
carcinogen, however small, may trigger a cancer) has been used
consistently for Federal Government policies applying to
drinking water, food, drugs, air pollution and workplace
exposures, it has also been challenged in a number of cases.
Some have pointed to pharmacokinetic data and models that
suggest the possibility of a ``threshold'' for some
carcinogens. One suggestion is that in some cases cancer is not
initiated or promoted by exposure to the substance itself, but
rather by some secondary biological mechanism that is only
triggered when exposure to the contaminant reaches a point that
it is toxic to the biological function of an organ or system.
With respect to drinking water contaminants, the possibility of
a threshold below which no increased cancer risk may occur is
most often suggested in the case of arsenic.
The new sentence added to section 1412(b)(4)(A) by the
bill would allow the Administrator to set a non-zero MCLG for a
drinking water contaminant regulated for its carcinogenic
effect, but only if the Administrator determines, based on the
best available scientific evidence, that a threshold for the
carcinogenic effect is present. This amendment to the law does
not provide the Administrator with authority to set MCLGs based
on a finding that the cancer risk is negligible or so small as
to be acceptable; the Administrator is not authorized to use
the authority to set a ``policy'' threshold below which
increased cancer risks are not considered in standard setting.
It may only be used where the Administrator has sound
scientific evidence to conclude that there would be no cancer
risk from ingesting the contaminant in drinking water at the
level of the MCLG.
The legislative language employs the phrase ``unlikely to
be any increase in the cancer risk'' to avoid an interpretation
that would require the Administrator to prove the negative in
order to use the authority.
The second change made to the standard setting authority
of the Act requires the Administrator to make a determination
with respect to the relative costs and benefits of each
national primary drinking water regulation when it is proposed.
The Administrator is to determine whether the benefits of the
maximum contaminant level justify, or do not justify, the
costs, based on the cost-benefit analysis required by section
1412(b)(3)(C), as amended by the bill. The new section
1412(b)(4)(C) requires the Administrator to determine whether
the benefits of a standard ``justify'' (rather than ``exceed''
or ``outweigh'') the costs to reflect the nonquantifiable
nature of some of the benefits and costs that may be
considered. The Administrator is not required to demonstrate
that the dollar value of the benefits are greater (or lesser)
than the dollar value of the costs. All costs and benefits,
both quantifiable and nonquantifiable, must be considered when
making determinations under this authority.
The Administrator is not precluded from using the
authority of section 1412(b)(4) to set a maximum contaminant
level as close to the maximum contaminant level goal as
feasible, even if the Administrator determines that the
benefits of the MCL at this level do not justify the costs. In
some instances, the Administrator will be required to take such
action. Under the bill, the Administrator is to periodically
review and, if appropriate, revise existing standards. This
review is to occur on a 6-year schedule and may result in the
repromulgation of some standards or a determination that the
current standards satisfy the requirements of the Act.
Therefore, it is quite possible that a future
Administrator will be required to issue or reconfirm an
existing standard with costs that the Administrator does not
believe are justified by the benefits. Because the valuation
placed on the benefits achieved by a regulation is necessarily
shaped by the subjective judgment of the Administrator, it is
to be expected that some future occupant of the position may
find a standard issued by a predecessor too costly for the
benefits obtained. Nevertheless, section 1412(b)(9) would
require that the standard be reissued or retained. \4\
\4\ An existing standard may be relaxed, but not on the grounds of
a cost-benefit analysis. If new science shows that a less stringent
standard would provide the same level of health protection, the MCL may
be revised upward.
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The third change in the standard-setting authority allows
the Administrator to consider the possibility that controlling
a particular contaminant may actually increase the health risks
posed by other contaminants that may occur in drinking water.
If application of the best available treatment technique that
is used to determine the feasible level of control for a
contaminant would increase the concentration of other
contaminants or interfere with treatment techniques for other
contaminants, the Administrator is authorized to set the MCL
for the contaminant at other than the feasible level. In these
cases, the MCL is to reflect the level that is likely to reduce
the overall risk of adverse health effects from drinking water
to the greatest extent.
The best known example of this interaction is the risk
tradeoff between disinfection treatment to kill pathogenic
organisms that may cause waterborne disease and the
disinfection byproducts that are generated by the use of
chlorine and other reactive agents for this purpose. Because
the competing risks in this case are so serious and because the
cost of properly balancing treatment systems is so large, EPA
conducted a negotiated rulemaking over a period of more than 2
years to develop a framework for the regulation of these
contaminants. The negotiating parties came to the conclusion
that not one, but two rules are required to maximize health
protection. The regulation will result in rules for
disinfection byproducts and an Enhanced Surface Water Treatment
Rule to address the offsetting risks of microbial organisms.
The bill recognizes this possibility by indicating that the
Administrator should look beyond the risk impacts of a single
treatment system to determine whether a coordinated approach
for the range of treatment systems used to control all of the
contaminants in question would be more appropriate.
The fourth change made by the bill would allow the
Administrator to establish an MCL at a level that is less
stringent than the level that is as close to the MCLG as
feasible, if the Administrator determines that health benefits
associated with the feasible level do not justify the costs.
This new authority is set forth in section 1412(b)(6). When
using this authority, the Administrator is to set the MCL at
the level that maximizes the health risk reduction benefits
that can be achieved at a cost that is justified by the
benefits.
Like many other environmental laws, the Safe Drinking
Water Act relies on the application of best available
technology to establish the level of protection that will be
provided for human health for many of the listed contaminants,
especially those that are regulated for their cancer-causing
effects. Although the goals set under the Act are based on the
principle that there is no safe level of exposure to a
carcinogen, it is not reasonable to set enforceable standards
as if these exposures could be eliminated in the real world.
Although the Congress has in some instances authorized EPA or
another health agency to set standards that are defined by an
acceptable level of cancer risk, most often the statutory
authority directs that standards be set based on the control
efficiencies of technologies or practices that are available,
taking costs into consideration, to regulated entities.
The advantage of technology-based standards is their
practicality. They get issued, implemented and enforced. The
disadvantage is the over-regulation that is sometimes
associated with requiring the use of a treatment system, just
because it is available, without regard to the health or
environmental gains that its use may produce or other
opportunities for health and safety gains that are lost when
the investment in a one-size-fits-all technology is required.
This may be seen most clearly in the case of the Safe Drinking
Water Act where the benefit may be clearly definable (e.g.,
cancer cases avoided) and costs are relatively easy to
estimate. Some of the standards that have been issued or that
are under consideration have costs per cancer case avoided well
above the typical cost-benefit ratio for Federal health and
safety regulations.
The new section 1412(b)(6) allows the Administrator to
set aside the technology-driven standard-setting calculus of
current law when the additional removal efficiencies that might
be achieved by the very best available technology come at a
cost that does not justify the incremental gains in public
health that are realized.
This authority is entirely discretionary with the
Administrator. No court may compel the Administrator to set a
standard using the authority of section 1412(b)(6), as amended,
even in the event that the Administrator determines that the
benefits of a standard at the feasible level do not justify the
costs.
Section 1412(b)(9) precludes the use of this new cost-
benefit standard-setting authority as the sole basis to relax
any existing maximum contaminant level. Nevertheless, the new
authority may play an important role in revising existing
standards in the future. Standards issued pursuant to section
1412(b)(4) must contain MCLs as close to the MCLGs as feasible.
This means that the removal efficiencies of treatment
technologies or the quantitative powers of analytical methods
play a decisive role in setting the standards. As these
technologies and methods improve, the law requires the
Administrator to make the standards even more stringent. In
some cases, this added stringency comes at a high cost with
little additional public health benefit. While the
Administrator may not use the authority of section 1412(b)(6)
to make existing standards less stringent, it can be cited as
authority to avoid an unjustified tightening of standards that
already provide adequate protection.
As noted at several other places in this report, there
are significant economies of scale in drinking water supply.
Urban communities are able to spread the costs of a treatment
plant over a large population reducing the cost per household
to affordable levels. The cost of a treatment plant needed by a
small community to reach the same level of health protection
may impose substantial per household costs for the few families
that rely upon it. This physical reality has always presented a
substantial public policy dilemma under the Safe Drinking Water
Act. One standard does not fit the needs and budgets of both
large and small communities. A standard written for the 80
percent of the population served by large cities is too
expensive for many small communities. A standard written to be
always affordable for every small town would deny the health
benefits that are available to large cities through economies
of scale. Most would also reject a system of dual standards--
one for urban Americans close to the health goals of the Act
and a less protective standard for Americans living in small
towns or rural areas.
The bill includes several provisions intended to overcome
this dilemma, including the new SRF grant program and the
authority to provide variances allowing for the use of best
available technologies that are affordable for small systems.
It is not intended that this dilemma will be resolved by the
new ``cost-benefit'' standard setting authorities of section
1412(b)(6). Simply averaging the costs and benefits experienced
by large and small communities to produce a standard somewhere
in the middle does not serve the interests of either group. An
average standard will likely continue to be too expensive for
small communities; and it will not provide the health
protection that Americans in larger communities want and can
afford.
The bill includes a specific provision, section
1412(b)(6)(B), that directs the Administrator to make a two-
part analysis when using this new ``cost-benefit'' authority to
set drinking water standards. The Administrator is to consider
not only the aggregate costs and benefits that may be
experienced by all systems, but is also to look at the systems
that are actually expected to implement the standard to
determine whether the benefits justify the costs for these
systems. If most small systems are expected to receive a
variance from a particular standard and the benefits of a
standard at the feasible level (authorized by section
1412(b)(4)) experienced by consumers served by large systems
(and other systems that do not receive a variance) justify the
costs, then the Administrator is not to use the authority of
section 1412(b)(6) to set a standard. This exception to the
discretionary authority to set standards under section
1412(b)(6) does not apply where the contaminant occurs almost
exclusively in small systems.
The bill precludes use of the authority provided by
section 1412(b)(6) to establish maximum contaminant levels in
the Stage I and Stage II rulemakings for disinfectants or
disinfection byproducts or to establish a national primary
drinking water regulation for Cryptosporidium. Section
1412(b)(5), as amended by the bill, applies to the maximum
contaminant levels and other requirements that will be
established under the Stage II rule. These prospective actions
result from a negotiated rulemaking conducted by EPA and other
interested parties including water suppliers, State and local
governmentorganizations, public health officials and public
interest organizations. Negotiated rulemakings of this type are
specifically encouraged by Federal statute (see P.L. 101-648,
the Negotiated Rulemaking Act of 1990).
By any yardstick, the negotiated rulemaking for
disinfection byproducts was a significant achievement in the
field of water hygiene. Each of the parties was required to
make significant concessions to reach an agreement that covers
the substance of several rulemakings that will not be fully in
place for many more years. The agreement itself contains an
over-arching set of principles to guide these rulemakings and
to weigh the very same factors that are addressed by the
standard setting amendments proposed in S. 1316. But to
authorize the Administrator to set aside the carefully balanced
structure of this agreement by using the new standard setting
authorities of the Act for Stage I and Stage II would be
counterproductive and contrary to the spirit of the statutory
authority under which the negotiation was conducted.
The negotiations produced a detailed rule for Stage I
that has been published for comment by EPA. The agreement
provides that the negotiations are to be reconvened when
additional information is available to produce a detailed
proposal for Stage II. It is intended that these negotiations
be held and that the Stage II rule be guided by the principles
set forth in the agreement. Therefore, the bill contains a
provision (section 1412(b)(6)(C)) that precludes the
Administrator from using the ``cost-benefit'' authorities of
the new paragraph (6) to set standards in the Stage I or II
rulemaking for disinfection byproducts or to establish a
national primary drinking water regulation for Cryptosporidium.
Section 1412(b)(6)(D) limits judicial review under
section 1448 of determinations made by the Administrator with
respect to the relative costs and benefits of national primary
drinking water regulations. Review is limited in two ways.
First, the review is to occur only as part of the review of a
regulation that has been promulgated. Second, the court may
only set aside the determination if the court finds that the
Administrator's determination was arbitrary and capricious. The
objective is to prevent litigation challenging the values that
the Administrator implicitly assigns to preventing death and
disease when the Administrator determines that the benefits of
a rule do or do not justify the costs. A Federal court action
under section 1448 is not the appropriate forum in which to
decide the precise value of a human life or the costs that are
appropriately incurred for precautionary and preventive public
health measures. A court may set aside a rule for which no
cogent analysis of the costs and benefits is offered in support
of the determinations required by section 1412(b). But a court
is not to examine the values that the Administrator brings to
bear on these decisions. These determinations are delegated by
the Congress solely to the Administrator.
The bill includes a fifth item on standard setting that
is not an amendment to the Act but is proposed as a free-
standing provision of law. As noted above, EPA has guided a
difficult, but successful, regulatory negotiation with respect
to new standards for disinfectants and disinfection byproducts.
One product of that negotiated rulemaking is a proposed Stage I
rule for these contaminants. That proposed rule appears to be
in every way consistent with the authority to balance competing
risks that is provided by the bill in the amendments to section
1412(b)(5).
However, to preserve this rule as negotiated, section
6(b) of the bill precludes any court from setting aside the
Stage I rule when it is eventually promulgated on the grounds
that it is not consistent with section 1412(b)(5). There is no
part of the new standard setting authorities of this bill that
is intended to force modifications in the Stage I rule. It is
to be noted that the agreement of the parties itself does
provide for changes in the rule between proposal and
promulgation in the event that new information warrants the
change. The bill is also not intended in any way to interfere
with or alter these grounds for revision of the Stage I rule.
It is expected that further negotiations will be necessary to
finalize a proposed Stage II rule.
The provisions of new section 1412(b)(5) are consistent
with the principles of the agreement reached by the parties to
the DBP negotiation. It does not apply to the Stage I rule,
because that rule has already been proposed in detailed form.
It does apply to the Stage II rule. The provisions of the new
section 1412(b)(6) go beyond the scope of the agreement and,
therefore, do not apply to either rulemaking under the terms of
the bill.
The sixth change to the standard setting authorities of
the Act modifies the schedule and basis for reviewing and
revising the regulations that have already been promulgated.
Current law requires the Administrator to review and revise, if
appropriate, each national primary drinking water regulation
every 3 years (section 1412(b)(9)). Standards would be revised
whenever improvements in technology or treatment techniques
make additional protection of public health feasible. The
Agency has generally not met the requirement to review each
national primary drinking water regulation on a 3-year cycle.
The resources of the Environmental Protection Agency are
extremely limited and less than needed to fully satisfy all of
the statutory duties that Congress has imposed. It is highly
unlikely that any significant additional public health
protection will result from drinking water standards that are
modified on a 3-year cycle. Therefore, the bill extends the
review cycle to 6 years and provides that the Administrator
need not repromulgate a standard if the Administrator
determines that the current provisions of a national primary
drinking water regulation satisfy the requirements of the Act.
However, the Administrator is required, at a minimum, to
publish such a determination which is a final agency action for
purposes of review under section 1448.
Amendments made by the bill require that any future
standard issued for a contaminant already regulated must
maintain or provide for greater protection of the health of
persons. Generally, this will preclude the promulgation of a
revised standard for a contaminant that is less stringent than
the standard already in place. However, there are circumstances
under which a standard may be relaxed. The maximum contaminant
level goal for a contaminant is set at a level at which there
is no adverse effect on the health of persons with an adequate
margin of safety. New scientific information may cause the MCLG
to be revised and in some cases these revisions may be to less
stringent levels. This may lead to a revision of the maximum
contaminant level since it need be no more stringent than the
MCLG. New information may also allow for a smaller margin of
safety because it narrows the range of uncertainty for
estimates of health risks. Finally, some substances which have
been regulated as carcinogens for ingestion in drinking water
may be reclassified (as asbestos has been in the most recent
revision) or assigned a threshold for the effect based on new
scientific information. In each of these cases, EPA may issue a
revised standard for a contaminant that is less stringent than
the one it replaces.
section 7. arsenic
Summary
Arsenic is currently regulated under the Safe Drinking
Water Act. The MCL is 50 parts per billion. Although arsenic is
a known human carcinogen by ingestion, the current standard was
not established to address this adverse effect. The 1986
Amendments required the arsenic standard to be revised. EPA has
not completed this duty because of substantial scientific
uncertainty about the cancer-causing effect of arsenic at very
low doses. If the arsenic standard were revised based on
current policy, the standard might be set as low as 5 parts per
billion. A standard at this level may impose unnecessary
compliance costs, if there is a threshold for the cancer-
causing effect of arsenic that is substantially above this
level.
This bill allows additional time for research to resolve
this scientific uncertainty. The deadline for revising the
national primary drinking water regulation for arsenic is
delayed until January 1, 2001. The Administrator is to adopt a
research plan to resolve the outstanding questions with respect
to the carcinogenic effects of low levels of exposure to
arsenic within 180 days of enactment. Prior to proposing a
revised arsenic standard, the Administrator is to conduct a
formal review of the research results and consult with the
Science Advisory Board.
Discussion
Arsenic is a naturally-occurring substance that may
become a contaminant in drinking water. It is a particular
problem in the western regions of the United States and for
small systems that rely on ground water sources, but may also
be a contaminant in surface waters.
Arsenic causes several adverse health effects, the most
important of which are vascular diseases and skin cancer.
Arsenic is classified as a known (Group A) human carcinogen by
ingestion.
Arsenic is currently regulated under the Safe Drinking
Water Act and has been regulated by the Federal Government
since 1942. The current standard established by the Public
Health Service is 50 parts per billion. That standard was set
to address vascular diseases and other adverse effects of
arsenic, but was not established to address the cancer risk.
The 1986 Amendments required the arsenic standard to be
repromulgated by not later than 1989 under the standard setting
authority of the Safe Drinking Water Act. EPA has yet to
propose a revised arsenic standard.
Because arsenic is a known human carcinogen, current
policy would require the Agency to set an MCLG for arsenic at
zero. \5\ The maximum contaminant level would then be set as
close to the goal as feasible using best available treatment
technologies that are affordable for large systems. Based on
the removal efficiencies of available technologies this may
result in an MCL for arsenic of 2 to 5 parts per billion (ppb).
If the standard were set at 5 ppb, treatment to remove arsenic
from raw water would be required at approximately 5,000 public
water systems at an annual cost of $620 million.
\5\ There is currently no MCLG for arsenic.
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There is some scientific uncertainty with respect to the
cancer-causing characteristics of arsenic, especially at very
low levels. In a letter dated November 8, 1993 transmitting a
review of the EPA's draft criteria document on arsenic, the
Science Advisory Board, noted that ``available data suggest
that arsenic blood concentrations may only become elevated when
the level of arsenic in water exceeds 100 micrograms per liter
[100 ppb], a level that is present only in a very small
proportion of U.S. drinking water sources.'' Since other
sources of exposure (diet, air pollution, etc.) account for 40
to 70 percent of the daily exposure to arsenic, it may be that
reducing levels of arsenic in drinking water would not produce
a commensurate reduction in blood levels and cancer risks.
If this is the case, the expenditures necessary to comply
with a drinking water standard in the range of 2 to 5 ppb
issued under current authorities may not be justified by the
public health benefit. These uncertainties are resolvable
through additional research on the health effects of arsenic.
The type of research needed is well-understood and not costly
(relative to the health risks and treatment plant investments
under consideration). A panel of scientists brought together by
the American Water Works Association Research Foundation in May
and June of this year has identified 31 research projects with
a total cost of $19.3 million that may answer many of the
questions about low level exposure to arsenic and the
associated cancer risks. The Foundation has already provided
funding for two of these projects from private sources.
It is unfortunate that EPA has not already conducted the
research necessary to proceed with an arsenic standard.
Although directed by the Congress in 1986 to revise the
standard by not later than 1989, the Agency has never requested
funds to do the research it now describes as a necessary
foundation for a revised drinking water standard. Recognizing
the costs and uncertainties involved in this regulation, the
Agency is seeking the postponement of a court-order deadline
that would have required a proposed rule to be issued by
November 15, 1995. In a memorandum dated February 6, 1995,
announcing his intention to seek the delay, EPA Assistant
Administrator for Water, Robert Perciasepe, stated that delay
should only extend for a short period:
``In drinking water, the principle health effects
of arsenic, at levels we are likely to see, are long-
term chronic effects. Thus, the risk increases as
exposure accrues. I believe the incremental risk
resulting from a delay of a couple of years is offset
by the benefit of research to reduce the uncertainty of
our risk assessments and provide further data on
treatment technologies. If insufficient progress has
been made on the research front in that timeframe, it
would be appropriate to proceed with rulemaking rather
than wait for open-ended research results.''
The Administrator is to publish a research plan for the
health risks of arsenic in drinking water at low exposure
within 180 days of enactment. The research plan should be based
on a schedule consistent with the requirement in the bill that
a proposed regulation be published not later than January 1,
2000.
section 8. radon
Summary
The Safe Drinking Water Act Amendments of 1986 required
EPA to promulgate a national primary drinking water regulation
for radon by 1989. EPA proposed a standard at 300 picocuries
per liter (pCi/L) in 1991. Congress suspended action on this
regulation pending a review of the costs and benefits of the
drinking water standard relative to other risks from radon in
the environment.
The bill directs EPA to promulgate a standard for radon
not later than 180 days after enactment. The standard is to be
established at 3000 pCi/L, a concentration that will reduce the
health risks from radon in drinking water caused by inhalation
(breathing radon that evaporates from water) to levels
commensurate with risks from radon in outdoor air.
Under the provisions of the bill, EPA may subsequently
revise the standard to make it more or less stringent. The
standard may be made more stringent, but only if the
Administrator determines, and the National Academy of Sciences
and the Science Advisory Board concur, that revision is
appropriate to address risks from ingestion (swallowing radon
in the drinking water). In this case, the revised standard is
to be no more stringent than necessary to reduce the combined
inhalation and ingestion risk from radon to a level equivalent
to the inhalation risk from radon in outdoor air at the
national average level.
Discussion
Radon is a naturally occurring gas in soil resulting from
the radioactive decay of radium in the Earth's crust. It
dissolves in ground water and may become a drinking water
contaminant in some public water systems served by ground water
supplies. When water is used in the home for bathing, cooking
and washing, the radon evaporates into the indoor air.
Inhalation of this radon may present an increased risk of lung
cancer. EPA estimates that radon in indoor air is the second
leading cause of lung cancer in the United States (although
only a small portion of this cancer risk comes from radon in
drinking water). Radon ingested with drinking water may also
present a cancer risk to other organs.
The 1986 Amendments required EPA to set a standard for
radon. EPA proposed a standard of 300 picocuries per liter
(picocuries is a measure of radioactivity). According to EPA's
estimates, 19 million Americans are consuming drinking water
with radon at levels above the proposed MCL. EPA estimated that
an MCL at this level would prevent 84 cancer deaths per year
(of the 192 attributable to radon in drinking water). EPA also
estimated the compliance cost at $272 million per year
nationwide or approximately $3.2 million per cancer case
avoided. The drinking water community has concluded that the
costs will be much higher than the EPA estimate and also
strongly disputes the cancer risk estimates that EPA has
published.
Radon from drinking water typically contributes less than
5 percent of the radon gas in indoor air. The largest portion
of the radon in indoor air comes from soil gas entering a
building from cracks in the foundation or crawl spaces.
Although EPA estimates that 13,600 cancer cases per year are
being caused by radon from soil gas, the nation has not mounted
a substantial effort to respond to this health threat.
Estimates made by EPA indicate that modifications in new home
construction and retrofits to existing buildings can reduce
expected cancer cases at a cost of approximately $700,000 per
case.
Since a significant effort is not being made to reduce
the 95 percent of radon that comes from soil gas (where costs
per cancer case avoided may be much less), the drinking water
standard has been viewed as too stringent to be justified.
Congress has postponed promulgation of this regulation (through
annual riders to EPA appropriations bills) since 1992. In 1992,
Congress required EPA to prepare a report on its proposed
drinking water standard relative to the risks of radon from
other media and also called for a review of that report by the
Science Advisory Board. EPA transmitted that report (Report to
the United States Congress on Radon in Drinking Water:
Multimedia Risk and Cost Assessment of Radon) to Congress on
March 29, 1994. The statistics cited above are taken from that
report. The view of the Science Advisory Board is summarized in
the following quotation from their letter of July 30, 1993
reviewing the draft EPA report:
``Because of uncertainties in both risk estimates
and costs of mitigation there is substantial
uncertainty in the cost per cancer death avoided. This
uncertainty is especially large for mitigation of
cancers related to ingestion of water. However, even
with this uncertainty, it is clear that the cost per
lung cancer avoided from mitigation of indoor air radon
is substantially less than the cost per cancer death
avoided due to mitigation of exposure from radon in
drinking water. This difference appears to be at least
a factor of 4 ($3.2 million per cancer death avoided
related to drinking water and $0.7 million per cancer
death related to airborne radon) and may be
substantially larger.
``In summary, the SAB notes the extent of the
uncertainties in the population exposure profiles, the
risk estimates for ingested radon in drinking water and
the costs of mitigation. In view of these large
uncertainties for risk estimates for ingested radon in
drinking water and knowledge of the substantially
greater risks associated with airborne radon indoors
and outdoors directly from soil, the SAB advises EPA
consider various options for mitigating radon cancer
risks.
``[A] standard might be set at some higher
level...to initiate mitigation of the highest potential
risks. For example, setting a water standard at 3000
pCi/L would result in water contributing no more radon
to indoor air than is present in outdoor air... At the
same time it would be appropriate to intensify research
on radon ingestion and radon mitigation, data gathering
on radon occurrence in all media, and dialogue with
interested parties.''
The bill sets a standard of 3000 picocuries per liter of
water for radon, reducing the indoor inhalation risk
attributable to radon from drinking water to a level
commensurate with the risk of breathing radon in outdoor air.
The Administrator is to promulgate the national primary
drinking water regulation for radionuclides including radon not
later than 180 days after enactment of the 1995 Amendments. EPA
is not required to take any other action, conduct any study or
make any determination under any other provision of the Safe
Drinking Water Act or other law prior to issuing this
regulation.
The regulation is to set the maximum contaminant level
for radon at 3000 picocuries per liter of water. EPA estimates
that the ratio of radon in indoor air resulting from the
evaporation of radon gas from drinking water (and water used in
showers, bathing and washing) to the radon in the water is
1:10,000. Therefore, a standard at 3000 pCi/L should produce
indoor air radon levels attributable to drinking water no
greater than radon levels in outdoor air, since the national
average is 0.4 pCi/L in outdoor air (as cited by EPA's National
Radon Ambient Radon study.)
EPA may subsequently revise the radon standard. The
revisions would be made pursuant to all of the authorities set
forth in subsection 1412(b) of the Act subject to limitations
stated in the new section 1412(b)(13). This means that EPA
could revise the standard to a level less stringent than 3000
pCi/L, if subsequent science indicated that a less stringent
level would provide the same level of health protection as the
level established by the bill. Since radon is regulated for its
cancer-causing effect, such a result could occur if the
Administrator determined that there is a threshold level below
which exposure to radon is unlikely to result in any increase
in cancer risk (section 1412(b)(4)(A)).
The bill also allows the Administrator to revise the
radon MCL to a more stringent level, but only if three
conditions are met.
First, the revision must be based on a determination by
the Administrator that there are adverse effects from ingestion
and episodic exposure to radon in drinking water that increase
lifetime cancer risks from radon in drinking water beyond the
inhalation risks that are experienced as the result of
evaporation of radon from drinking water into indoor air. Any
adjustment to the standard to make it more stringent may only
be made to reflect these ingestion and episodic risks.
Second, the revised standard will continue to use the
inhalation risk from radon in outdoor air as the guidepost. The
revised MCL for radon in drinking water is to achieve a
lifetime cancer risk from the combined inhalation, ingestion
and episodic exposures that is equivalent to the lifetime
cancer risk from inhaling radon in outdoor air at the national
average outdoor levels. This equivalence is achieved first by
estimating the increased probability of a person contracting
lung cancer by inhaling radon from outdoor air over a lifetime.
After the Administrator has made a risk estimate of this type
for the inhalation risks from radon in outdoor air, the
Administrator is to set the MCL for radon in drinking water so
that a person exposed to drinking water (in all of its
residential uses) with a radon concentration at the MCL level
over a lifetime would experience (considering the combined
inhalation, ingestion and episodic exposures) the same increase
in the probability of contracting cancer as that attributed
solely to inhaling radon in outdoor air.
Third, this revision cannot occur unless it is supported
by peer-reviewed scientific studies and the National Academy of
Sciences and EPA's Science Advisory Board agree that the
revision is appropriate.
section 9. sulfate
Summary
The 1986 Amendments required EPA to establish a standard
for sulfate. EPA has not completed this duty for two reasons.
First, scientific information is not sufficient to determine
the dose-response relationship for sulfate with a high degree
of confidence. Second, because persons become quickly
acclimated to sulfate in their drinking water, the adverse
health effect from sulfate exposure (diarrhea) is experienced
primarily by travelers, new residents and infants.
In response to public comments expressing concern about
the high cost of an MCL for sulfate removal at small systems,
EPA withdrew its original proposal. A rule re-proposed by EPA
in December, 1994, set forth a preferred option to protect
these susceptible populations that relies on bottled water and
public education.
The bill authorizes the Administrator to use public
education and alternative water supplies (bottled water),
rather than centralized treatment, to reduce the costs of a
national primary drinking water regulation for sulfate. The
Administrator is directed to complete a rulemaking for sulfate
not later than 2 years after enactment.
The maximum contaminant level for sulfate promulgated
under the Safe Drinking Water Act is not to be used by the
Administrator for ground water remediation decisions under
CERCLA or RCRA, unless the Administrator engages in a separate
rulemaking under the authority of those statutes to establish a
remediation standard for sulfate.
Discussion
Sulfate is a naturally-occurring substance in soil and
rock that may become a contaminant in drinking water.
Contamination from natural sources occurs principally in the
midwest and western regions of the nation. Sulfate is also a
waste product in steel and metal manufacturing and may be a
water pollutant from these sources.
The adverse health effect associated with sulfate is
diarrhea. The effect is acute and temporary. A person who
continues to ingest drinking water containing sulfate at
moderate to high levels will become ``acclimated'' to the
contaminant in a period of 2 weeks or less and the diarrhea
effect will not recur. Therefore, the populations affected by
sulfate contamination are newborn infants, travelers, and new
residents to an area with high sulfate levels in drinking
water. EPA has estimated that 1 million travelers, 127,000 new
residents, and 27,000 newborn infants may be exposed each year
to drinking water with sulfate concentrations at levels with a
potential to cause a laxative effect.
Approximately 2000 public water systems have sulfate
concentrations that are at or above the concentration level of
a potential standard. Sixty percent of these systems serve
transient populations and 88 percent of the affected systems
serve fewer than 500 people.
The 1986 Amendments directed EPA to establish a national
primary drinking water regulation for sulfate by 1989. EPA
proposed a standard in 1990 that was subsequently withdrawn
because of concern about the health effects science on which
the rule was based and the high cost of compliance. Under a
court-ordered deadline, the Agency reproposed the rule in
December, 1994 and is scheduled to promulgate the final rule in
May of 1996.
The proposed regulation includes a maximum contaminant
level of 500 milligrams per liter. It is expected that no cases
of diarrhea would be experienced by individuals ingesting water
with sulfate at these levels. The proposed rule includes four
possible regulatory options. The preferred option departs from
previous drinking water standards by allowing public water
systems to comply with the rule through public education,
notification and the provision of alternative water supplies to
portions of the susceptible populations affected. This option
would avoid substantial costs to small public water systems and
the households they serve. EPA estimated that compliance with
the MCL by central treatment would cost $147 million and as
much as $670 per household per year for the smallest systems.
By contrast, the costs of rules relying on bottled water and
public education for compliance may be as low as $16 million
per year.
EPA was unable to estimate the value of the benefits
produced by the rule, since EPA has concluded that the
scientific evidence available on the laxative effects of
sulfate is not sufficient to establish a dose-response
relationship. A regulatory impact analysis done by an EPA
contractor for the rule proposed in 1990 estimated the health
benefits of eliminating cases of diarrhea caused by sulfate
contaminated waters at $23 million per year.
The bill requires EPA to issue a final national primary
drinking water regulation for sulfate not later than 2 years
after enactment. The bill endorses EPA's preferred regulatory
option allowing public water systems to comply with the rule
through public education and the provision of alternative water
supplies to the affected populations, unless new scientific
information indicates that the health effects of sulfate are
more serious than now known.
If the Administrator chooses to repropose the rule using
the new authority of section 1412(b)(6) to reflect the relative
benefits and costs of controlling sulfate in a standard, she
may do so. Because this authority is discretionary, the
Administrator may also promulgate a rule based on the proposal
that was issued in December, 1994.
In many instances, maximum contaminant levels set under
the Safe Drinking Water Act have been used as ground water
cleanup and remediation standards under other laws including
the Superfund program and Federal and State hazardous waste
laws. The bill contains provisions precluding the use of an MCL
for sulfate as a remediation standard under other Federal
environmental programs unless the Administrator establishes the
standard by a rulemaking under the authority of those laws.
section 10. filtration and disinfection
Summary
The 1986 Amendments required EPA to issue rules requiring
filtration for all systems served by surface water sources and
disinfection by all systems. The Surface Water Treatment Rule
implemented the filtration and disinfection requirements for
systems served by surface water sources. The disinfection
requirement for systems served by ground water sources has not
been fully implemented.
The bill postpones promulgation of rules for the
disinfection of drinking water from ground water sources. This
delay will ensure that potential risks from the byproducts of
disinfection are balanced with the benefits of disinfecting
ground water supplies. The Administrator is authorized, in
consultation with the States, to develop criteria to be applied
by the States to determine which systems relying on ground
water sources are to use disinfection.
The Administrator is directed to publish guidance to
accompany the proposal of the Interim Enhanced Surface Water
Treatment Rule that identifies filtration technologies that are
feasible for public water systems relying on surface water
serving fewer than 3,300 persons.
Discussion
Preventing waterborne disease is a principal purpose of
the Safe Drinking Water Act and of paramount importance to the
health of the American people. As described by Dr. David
Ozonoff (Chairman of the Department of Environmental Health,
Boston University School of Public Health) at the Committee's
hearing on October 19, 1995:
``Chief among the public health triumphs of this
century has been the provision of safe and healthful
drinking water to most of our citizens. This single
measure has done more to improve the health status of
the community, and at lower cost, than any other
achievement, not excepting immunization, advances in
medical technology, or modern medical treatments and
drugs. Community water supplies affect an entire
community at once, providing an extraordinarily cost-
effective way to deliver a commodity essential to good
health and quality of life.''
The most important measures contributing to the public
health gains achieved through safer drinking water are the
filtration and disinfection of municipal water supplies. Use of
these water treatment strategies became widespread early in
this century and effectively ended the era of typhoid and
cholera epidemics caused by contaminated water. Notwithstanding
the tremendous gains that have been made, the nation continues
to experience waterborne disease outbreaks, some with
catastrophic consequences. An outbreak of Cryptosporidiosis in
Milwaukee in the Spring of 1993 resulted in 400,000 illnesses
and over 100 deaths. Officials of the Centers for Disease
Control have estimated that more than 900,000 Americans become
ill and 900 die each year as the result of preventable diseases
caused by bacteria, viruses and protozoa in public drinking
water supplies. These sobering public health statistics may
improve as the result of the Surface Water Treatment and Total
Coliform rules recently promulgated under the Safe Drinking
Water Act.
The 1986 Amendments to the Safe Drinking Water Act
directed EPA to issue regulations mandating filtration at most
public water systems relying on surface water supplies and
disinfection at all public water systems using either surface
water or ground water supplies. Section 1412(b)(7),
establishing the filtration requirement, includes authority for
a State to waive the filtration requirement for a public water
system, if measures taken in the watershed surrounding the
source of supply to protect the system from contamination meet
criteria issued by EPA.
The Surface Water Treatment Rule, promulgated in 1989,
was designed to satisfy these provisions of the Act. The Rule
set a deadline of June 29, 1993 for the use of filtration. In
addition to the filtration requirement, the Surface Water
Treatment Rule mandates disinfection by all systems using
surface water supplies and by all systems relying on ground
water that is under the direct influence of surface water.
EPA has not fully implemented the disinfection
requirements in the statute that are applicable to other
systems relying on ground water. There are several reasons for
the delay. First, the disinfection requirement would have a
large cost impact for small systems, because most small systems
rely on ground water sources. If all ground water systems were
required to disinfect, the annual cost may be as high as $1
billion. Second, it appears that not all ground water systems
will have contaminant risks that warrant disinfection. Third,
there is concern that many small systems do not have the
technical capacity to safely operate disinfection systems.
Fourth, disinfection may produce byproducts in some systems
that are associated with other adverse health effects including
cancer and birth defects (although this is less of a concern
for systems supplied by ground water than it is for systems
supplied by surface water because they are less likely to be
contaminated with organic substances that are precursors of the
byproducts).
Although not all ground water systems are prone to
contamination by the microbial organisms associated with
disease outbreaks, it is important to note that approximately
one-half of the reported waterborne disease outbreaks occurring
in the United States between 1971 and 1988 were associated with
drinking water systems relying on ground water sources. Of the
574 outbreaks reported to the Centers for Disease Control
during this period, 276 were at ground water systems--174 in
systems with ground water that was not disinfected and 62 at
systems with disinfection treatment equipment that was not
operating at the time of the outbreak. It should also be noted
that many ground water systems (50 percent of community systems
and 20 percent of noncommunity systems) already use
disinfection and that the Total Coliform Rule, requiring
monitoring for coliform contamination, applies to all public
water systems. It is, therefore, important that a requirement
for appropriate ground water disinfection criteria be retained.
EPA has been working with a task force appointed by the
States to carry out the disinfection provisions of current law.
The bill makes two important changes in section 1412(b)(8) that
are consistent with the recommendations of the task force.
First, the deadline for issuing regulations to require
disinfection at ground water systems is delayed until at least
3 years after the date of enactment of the bill. This delay
ensures that the health risks of disinfectants and disinfection
byproducts will be more fully understood and considered in the
design of disinfection requirements. The bill requires EPA to
promulgate the disinfection regulations for ground water
systems not later than the date on which the Stage II
regulations for disinfectants and disinfection byproducts are
finalized.
Second, EPA is to develop criteria, working in
consultation with the States, to identify public water systems
using ground water supplies that should install disinfection
treatment. The criteria are to be issued with the regulations.
The criteria will reflect factors that make ground water
systems vulnerable to contamination by pathogenic organisms
including depth of wells, hydrogeology in the area of the
wellfield, distance to pathogenic sources and the
characteristics of the distribution system. Regulations for
disinfection may include separate provisions for the
disinfection of source water and water in the distribution
system.
Under regulations issued to implement section 1412(b)(7),
all public water systems using surface water sources were to
install filtration by not later than June 29, 1993, unless the
State in which the system is located provided a waiver.
Although filtration technologies feasible and appropriate for
small systems have become available, State agencies have been
reluctant to approve these systems. The Administrator could
assure significant cost savings for small systems by providing
timely and reliable information on the appropriate use of
filtration technologies by small systems. To assure that
alternative filtration technologies feasible for small systems
are available at the earliest possible time, the Administrator
is required to specify filtration technologies that are
feasible for small and noncommunity systems. The Administrator
is to include guidance on filtration treatment techniques that
are feasible for small systems with the Interim Enhanced
Surface Water Treatment Rule at the time that it is proposed to
carry out the negotiated rulemaking agreement for disinfection
byproducts. \6\
\6\ The Interim Enhanced Surface Water Treatment Rule was proposed
July 29, 1994 and did not include these specifications.
---------------------------------------------------------------------------
section 11. effective date for regulations
Summary
Section 1412(b)(10) of current law is amended to require
compliance with national primary drinking water regulations no
later than 3 years after promulgation (extended from 18 months
under current law). The compliance deadline can be extended for
up to 2 additional years for all systems (by the Administrator
in the regulation) or for a particular public water system (by
a State), if it is determined that additional time is needed
for the capital improvement projects that will be necessary to
meet new treatment requirements.
Discussion
Under current law public water systems must comply with
maximum contaminant levels (MCLs) or treatment techniques in
new national primary drinking water regulations beginning 18
months after the regulation is promulgated (section
1412(b)(10)), unless the system receives a variance or an
exemption. Where complex treatment systems must be designed and
constructed to comply with an MCL, the 18-month period may not
provide the public water system sufficient time to remain in
compliance with the law. This problem was described at the
Committee's October 19, 1995, hearing by Mr. Gurnie Gunter,
Director of the Kansas City, Missouri Water Services
Department, testifying on behalf of the Association of
Metropolitan Water Agencies:
``Another important improvement made by S. 1316 is
the change in the current law's 18 month effective date
for regulations. When major capital construction is
required to comply with a standard, it can take more
than 18 months just to get the necessary environmental
and other permits necessary to start construction. The
entire construction process including issuing bonds or
obtaining other funding, design, permitting
construction and startup can take 5 years or more. S.
1316 would allow the Administrator to establish
effective dates of up to 3 years on a rule by rule
basis. Additional extensions of up to 2 years may be
granted when capital improvements are involved in
compliance. This is a major improvement over current
law and we support the bill's provision.''
Section 11 of the bill extends the basic compliance
period from 18 months to 3 years after the date a national
primary drinking water regulation is promulgated. The
Administrator may establish an earlier date for compliance as
part of the regulation, if an extended period is not necessary
for design and construction. The Administrator is also
authorized to extend the compliance period for an additional 2
years (up to a total of 5 years) in the promulgated regulation
where the additional period is necessary for construction
activities that may be necessary to comply.
In addition to the Administrator's authority to extend
the period beyond the 3 years by rule, a State may extend the
compliance period for particular public water systems in that
State that need up to an additional 2 years for the design and
construction of treatment facilities or alternative water
supplies to comply. The Administrator is authorized to provide
case-by-case extensions for particular systems in States that
do not have primary enforcement responsibility under section
1413.
Congressional intent with respect to the effective date
provision in current law was recently reviewed by the United
States Circuit Court of Appeals for the District of Columbia in
a case involving the lead and copper rule, American Water Works
Association v. EPA, 40 F.3d 1266 (D.C. Cir., 1992). An
intervenor in the case challenged the regulation, in part
because EPA had established a compliance deadline for portions
of the rule that extended beyond the 18-month period provided
in the Act. The intervenor argued that Congress meant the rule
to be implemented and enforced not later than 18 months after
promulgation.
EPA responded arguing that the purpose of the 18-month
effective date provision was to prevent EPA from enforcing
national primary drinking water regulations at any time before
the 18-month period had elapsed.
The court held that an effective date was not intended to
be the same as the date on which a rule is implemented and
enforced, because the Safe Drinking Water Act provides that
rules are generally to be implemented and enforced by the
States and an 18-month compliance deadline would not be
consistent with this State role, since State's are not even
required to submit their rules for EPA review within 18 months
after promulgation.
The bill makes changes to section 1412(b)(10) and other
provisions of the Act that overturn the conclusion reached by
the Court in this case. First, the new effective date is
extended for (up to) 3 years after promulgation and the
authority of the Administrator to make a regulation effective
before this date is made clear. Second, the bill adds explicit
authority for the Administrator to extend the effective date
when additional time is necessary to facilitate compliance.
Third, the period of time for States to adopt rules to retain
primacy under section 1413 is extended from 18 months to 24
months, providing sufficient time for States to put their own
rules in place before the date on which the rules are to be
implemented and enforced. Finally, the Act is amended to make
the exemption provisions of section 1416 more workable in the
event that a system cannot come into compliance with the
requirements of a national primary drinking water regulation in
the period of time provided by section 1412(b)(10).
Each national primary drinking water regulation is to be
implemented and enforced no later than a date that is
established pursuant to the deadlines set forth in 1412(b)(10),
as amended.
section 12. technology and treatment techniques; technology centers
Summary
This section of the bill directs the Administrator, at
the same time as a national primary drinking water regulation
is promulgated, to identify the treatment technologies that are
available for systems of various sizes, including systems
serving: between 3,300 and 10,000 persons; between 500 and
3,300 persons; and between 25 and 500 persons. The
Administrator may publish two distinct lists of technologies
for these small systems. Section 1412(b)(4)(E) requires the
Administrator to publish the best available technologies that
are: (1) feasible for small systems in each size category; and
(2) have removal efficiencies sufficient to comply with a
maximum contaminant level. If there are no technologies meeting
both tests for systems of a particular size, the Administrator
will publish a second list of technologies under section
1412(b)(15) of the best available treatment techniques that are
affordable for systems in that size category. This second list
is used by the States to grant variances from the maximum
contaminant level under section 1415(e).
The list of feasible technologies may also include
package units for small systems and point-of-entry treatment
equipment. Section 1445 of the Act is amended to give the
Administrator authority to request information on treatment
technologies from manufacturers, States and interested parties.
A new subsection is added to the research section of the
Act authorizing the Administrator to make grants to 5 or more
small public water system technology assistance centers at
institutions of higher learning. The centers will provide
leadership in solving national and regional rural water system
technology management problems and will disseminate the results
of small public water system technology research through
continuing education and training programs. Appropriations of
$10 million per year through the year 2003 are authorized for
this purpose.
Discussion
Standards are established under the Act based on the best
available treatment technology that large systems can afford.
Today, many small systems can not afford the treatment systems
used to establish national primary drinking water regulations.
However, the EPA has been working on a Small Systems Low Cost
Technology Initiative to encourage the manufacturing community
to focus on the development of treatment technology for small
systems. There are alternative technologies for small systems
that are available and, unlike the engineered systems
traditionally designed for large systems, can be sized to
accommodate the needs small systems.
The bill directs EPA to develop guidance or regulations
for all treatment technologies when issuing national primary
drinking water regulations and to identify the effectiveness
and cost of the technology. The technologies are to be listed
for systems in various size categories including systems
serving populations of: 3,300 to 10,000; 500 to 3,300; and 25
to 500.
Some treatment systems applied under the variance
provisions of section 1415(e) may not always comply with
maximum contaminant levels. To ensure public health protection,
additional measures must be considered when prescribing best
technologies for small systems. As part of the guidance issued
under section 1412(b)(15), EPA must consider other factors
related to the use of the technology, including requirements
for the quality of source water to ensure adequate protection
of human health, considering the removal efficiencies of the
technology, and installation and operation and maintenance
requirements for the technology. Particular technologies may be
appropriate and affordable for systems of a particular size,
but not for systems in another size category.
If new or innovative treatment technologies are developed
after promulgation of a national primary drinking water
regulation, the Administrator may issue guidance or regulation
for the new technologies. A list of treatment technologies that
are feasible for small systems, may include packaged or modular
systems and point-of-entry treatment units owned and maintained
by public water systems.
Finally, the Administrator is given authority to request
information on commercially available treatment systems and
technologies from manufacturers, States, and interested parties
for the purpose of considering the systems and technologies in
the development of the guidance or national primary drinking
water regulations.
Small public water systems technology assistance centers
can provide significant assistance to State and local
governments in the development of programs to address special
concerns relating to the water systems of rural communities and
Native Americans. The centers focus on development of
management strategies to ensure the availability and
sustainability of small public water systems serving these
communities.
They are particularly important to States with relatively
low population density that cover large geographic areas.
Communities in these States usually consist of only a few
hundred to a few thousand individuals. Delivering water from
remote sources is often cost prohibitive without assistance
from State and Federal sources.
Coordination of research, training, technical assistance,
and outreach efforts through small public water systems
technology assistance centers can provide the technical
information and outreach components needed by States and local
governments. These centers, located at institutions of higher
education, can provide information on rural water system
treatment technologies, development of alternate supplies,
training to enable compliance with State and Federal
regulations, and can act as clearinghouses for research efforts
for small water systems.
Native American Tribes face many of the same problems
that States and small communities face in developing and
operating rural water systems. In recent years, more tribal
organizations have assumed responsibility for management of
rural water systems and general water quality management
programs. They face many difficulties in developing and
initiating programs and the centers can provide training and
technical assistance to support these efforts.
section 13. variances and exemptions
Summary
Under sections 1415 and 1416 of current law, public water
systems may receive variances and exemptions from national
primary drinking water regulations. Generally, variances are
available where the poor quality of source water makes it
impossible for a system to comply with a maximum contaminant
level for a contaminant even when best available treatment
technology is used. Exemptions are available for limited
periods when systems need financial assistance or more time for
construction to come into compliance with the Act.
The bill modifies the variance and exemption provisions
to make them more workable. Under the bill, systems can be
assured of receiving a variance on the condition that they
build and operate the best available treatment system, rather
than receiving the variance only after the treatment technique
has failed to meet a standard (as provided in current law).
The bill also modifies the exemption authorities of the
Act to recognize a wider variety of conditions that may justify
a temporary exemption from the requirements of a national
primary drinking water regulation.
Discussion
Public water systems may be granted a variance from a
national primary drinking water regulation under section 1415
of current law, if the quality of the source water for the
system makes it impossible to comply with a maximum contaminant
level even when best available treatment technology is
employed. However, under current law the variance may only be
granted after the best available treatment system has been
installed and has failed to achieve the standard. This approach
does not provide certainty for public water systems, because it
forces investments in costly treatment plants, before the
system can be assured that the investment will enable the
system to come into compliance with the Act.
The bill modifies the variance authority of the Act
allowing public water systems to receive a variance on the
condition that they install and operate the best available
treatment technology for the contaminant as identified by EPA
under the regulation for which the variance is sought. The
variance is to be granted on the condition that best available
technology is installed and properly operated. A schedule for
constructing the necessary treatment facilities established by
a State in a variance should reflect the most expeditious
schedule practicable, consistent with other effective date
provisions in section 1412 and 1415.
Under section 1416 of current law, a State that has
primary enforcement responsibility for the Act may exempt a
public water system from compliance with a maximum contaminant
level or treatment technique in a national primary drinking
water regulation. The exemption may only be granted if the
system cannot comply with the regulation and no unreasonable
risk to public health will result from the exemption. The
Administrator may provide exemptions to systems in States that
do not have primary enforcement responsibility.
Section 13(b) of the bill makes several changes in the
exemption authorities of the Act. If a public water system
meets the criteria for classification as a `disadvantaged
community' established by the State for the purposes of loan
forgiveness under the State's revolving loan fund, the system
meets the economic needs test for an exemption.
The need for additional time to develop an alternative
source of water supply or to consolidate with another system is
recognized as justification for an exemption in the same way
that time needed to construct a treatment system is recognized
under current law.
The bill deletes the current law provision (section
1416(b)(2)(A)) limiting an exemption to a period of 12 months
(from the time initially granted) unless additional time (up to
3 years) is needed. The bill provides that States (and the
Administrator) may grant exemptions extending up to 3 years
after the compliance date for any national primary drinking
water regulation. This change simplifies the exemption
procedure but also limits an exemption to a period not to
extend beyond 3 years after the compliance deadline (generally
6 years after a rule is promulgated) for a particular
regulation. The one exception to this absolute outside date for
any exemption from a national primary drinking water regulation
is an additional period for systems serving populations of less
than 3,300. Extensions for small systems may be granted in 2-
year increments for an absolute period not to exceed 6 years
(in addition to the 3-year exemption available to all systems).
Systems may qualify for an exemption by showing that they
have secured a promise of financial assistance (as under
current law) or that they are reasonably likely to receive
assistance from the State's revolving loan fund during the
period of the exemption.
Systems receiving a variance under section 1415(e), as
added to the Act by the bill, could not also receive an
exemption under the revised section 1416.
section 14. small systems; technical assistance
Summary
Section 14 of the bill modifies the variance provisions
(section 1415) of current law to authorize variances for small
systems that cannot afford to comply with national primary
drinking water regulations.
This new variance authority is to be exercised by the
States. A State may grant the owner or operator of a public
drinking water system serving 10,000 or fewer persons a
variance from compliance with a maximum contaminant level or
treatment technique of a national primary drinking water
regulation if a system cannot afford to comply with the
regulation and the system installs the best available treatment
technology that is affordable for that system. The variance
must ensure adequate protection of public health.
If a variance is granted, the system has up to 3 years to
comply with the terms of the variance. The variance is in
effect for 5 years and reviewed every 5 years thereafter. A
person who is served by the system seeking a variance may
petition the Administrator to object to the granting of a
variance, if the provisions of the variance are not in
compliance with the Act.
Section 14 of the bill also reauthorizes the ``circuit-
rider'' provisions of current law. Using the authority of
section 1442(g), EPA has made grants to the National Rural
Water Association and various regional community action
organizations to provide technical assistance to very small
communities. The authorization for these grants is increased to
$15 million per year and is extended through the year 2003.
Discussion
Of the approximately 57,000 community water systems
regulated under the Safe Drinking Water Act, nearly 54,000
serve populations of 10,000 or less. While EPA has taken steps
to recognize the difficulties of small systems by establishing
the Small System Technology Initiative, by forming the National
Training Coalition, and by developing handbooks and computer
software, the current Safe Drinking Water Act does not
successfully address the problems of small systems.
The fundamental problem is one of economics. Maximum
contaminant levels in national primary drinking water
regulations have been based on the best available treatment
techniques that are affordable for large systems. Because small
systems do not enjoy the economies of scale that are available
to large systems (infrastructure costs cannot be spread over a
large number of households) drinking water regulations can have
a much greater economic impact on small systems. EPA and the
Congressional Budget Office have published estimates indicating
that systems serving more than 10,000 persons experience costs
averaging less than $20 per household per year to comply with
the current requirements of the Safe Drinking Water Act. By way
of comparison, the average annual incremental household cost to
comply with the requirements of the Safe Drinking Water Act for
systems serving 25 to 100 persons is $145.
Despite the relatively small portion of the population
served, small systems account for a large proportion of the
problems associated with the Safe Drinking Water Act
implementation and compliance. And according to EPA, costs
imposed on small systems may increase as the result of drinking
water regulations under consideration. This future burden may
be substantially reduced by modifications to the radon standard
that are made by the bill. However, new requirements for the
control of disinfection byproducts and arsenic may have a
significant impact on some small systems.
The bill authorizes the use of best available
technologies as the foundation of a new variance program for
small systems that is intended to make the Safe Drinking Water
Act affordable in small towns and rural areas.
The bill modifies the variance provisions of the Act to
authorize variances for small systems that cannot afford to
comply with national primary drinking water regulations.
This new variance authority is to be exercised by the
States with primary enforcement authority. A State may grant
the owner or operator of a public drinking water system serving
10,000 or fewer persons a variance from compliance with a
maximum contaminant level or treatment technique of a national
primary drinking water regulation if a system cannot afford to
comply with the regulation, including compliance through
treatment, alternative source water supply, or restructuring,
including consolidation. Any variance must ensure adequate
protection of public health.
The variance is to require the use of the best available
treatment technology that is affordable for the small system
receiving the variance. Information on the efficacy, cost,
useful life and source water requirements for these small
system technologies is to be published by EPA under section
1412(b)(15) which is added to the Act by section 12 of the
bill.
An application for a variance is submitted to the State
and within 1 year of submission the State must either grant or
deny the variance. A system that applies for a variance from a
regulation under this subsection is not subject to enforcement
for a violation of the regulation until a variance is either
granted or denied.
If a variance is granted, the system has up to 3 years to
comply with the terms of the variance. A State may allow an
additional 2 years to comply with the conditions of the
variance if the State determines that additional time is
necessary for capital improvements or financial assistance
under the State revolving loan fund or other State or Federal
programs. A variance is not available for a maximum contaminant
level or treatment technique for a contaminant for which a
standard had been promulgated under the Act prior to January 1,
1986 (even if the standard has been subsequently revised) or a
national primary drinking water regulation for a microbial
contaminant or an indicator or treatment technique for a
microbial contaminant. If a variance is denied, the system must
be in compliance with the regulation for which the variance was
denied not later than 4 years after the date when the
regulation was promulgated.
The variance is to be reviewed by the State at least
every 5 years. If the State determines that the system is no
longer eligible for the variance, that the system is not
complying with the conditions of the variance or that the terms
of the variance do not ensure protection of human health, the
State is to revoke the variance.
The Administrator is directed to promulgate regulations
in consultation with the States specifying procedures for
granting variances, including requirements for public notice to
the Administrator and consumers of the public water system,
installation and proper operation of treatment technology that
is feasible for small systems, the quality of source water, and
the financial and technical capability to operate a treatment
system, including operator training and certification. To
ensure that variances provide adequate protection of human
health, the regulations must address the relationship between
source water quality and the effectiveness of treatment
technologies. A small system may not be granted variance, if
the quality of its source water, in combination with the
removal efficiencies of the best treatment technologies, does
not ensure adequate protection of human health.
The Administrator is directed to publish, in consultation
with the States, information to assist the States in developing
affordability criteria to use when deciding whether a system
qualifies for a variance. Affordability determinations are to
be made by the States under criteria that each State develops.
Variances are only to be granted when no other affordable
avenue of compliance, including treatment, an alternative
source of supply, or restructuring or consolidation is
available. Even if compliance through restructuring or
consolidation is affordable for a system, the State may
nevertheless grant a variance to that system if the State
issues a written determination that consolidation is not
required for other public policy reasons. As an example,
consolidation may not be an achievable option where a small
suburban community has resisted annexation by a larger city and
the city declines to consolidate water systems in the absence
of formal annexation.
The Administrator is to periodically review the small
system variance program of each State and to notify a State in
writing if there are deficiencies. The Administrator may review
and object to any variance proposed to be granted by a State
and recommend modifications. If the State issues the variance
without resolving the concerns, the Administrator may overturn
the State decision.
A person who is served by a system seeking a variance,
and who has commented during the public review of the variance,
may petition the Administrator to object to the granting of a
variance, if the provisions of the variance are not in
compliance with the Act. The Administrator has 60 days to
respond to the petition and the State may not grant the
variance during this review period.
Other amendments incorporated in the bill support the new
variance program under section 1415(e). Section 12 of the bill
requires the Administrator to issue guidance identifying the
best available treatment technologies that are affordable to
small systems in various population categories. Several recent
reports, including a March, 1994, General Accounting Office
study of small system technologies, indicate that a new
generation of package plants and point-of-entry devices offers
hope of improved water quality at more affordable costs for
small systems. The GAO report (``Stronger Efforts Essential for
Small Communities to Comply with Standards,'' March, 1994)
urges the EPA to step up its efforts to help small communities
use more cost-effective technologies that are available for
protecting drinking water:
``Officials from EPA, the States, and small systems
all agree that more information is needed to evaluate
the cost and performance of alternative drinking water
technologies. If such information is widely available
and accepted as reliable, the use of alternative
drinking water technologies by small systems could
become more widespread.
``Although EPA is involved in efforts to develop
such data, limited resources have prevented the agency
from expanding its efforts to help field test various
technologies...
``Even if EPA cannot expand its efforts to develop
such information because of resource constraints, we
believe the agency could focus on (1) encouraging State
regulators, equipment manufacturers, and equipment
users to participate in efforts to develop nationwide
protocols for the testing and approval of alternate
technologies and (2) ensuring that any data developed
as a result of these efforts are effectively
distributed. Active participation by all of these
parties is essential if the resulting protocols are to
be widely accepted and widely used to facilitate
approval of alternative drinking water
technologies....[B]ecause State officials stressed that
they would be very conservative in granting any waivers
on the basis of use of these best available
technologies, EPA will need to work closely with State
regulators to address their concerns in this area.''
Making the new variance provisions of section 1415(e) a
successful response to the affordability problems experienced
by small systems under the Safe Drinking Water Act will take an
aggressive technology transfer effort by EPA, the States and
the manufacturers of small system technologies.
Technical assistance for small public water systems is
currently provided by several Federal, State, and private
organizations. The technical assistance ranges from simple
advice offered over the phone to hands-on maintenance and
repair of plant equipment. The Rural Utilities Service at USDA
and the EPA fund ``circuit rider'' programs. The circuit riders
visit individual sites and provide technical assistance to
drinking water system operators.
EPA has made grants to the National Rural Water
Association and various regional community action programs to
support technical assistance under the authority of section
1442(g) of the Act. The bill recognizes the importance and
success of these programs by increasing the authorization for
these grants from $10 million to $15 million per year and
extending the grants through fiscal year 2003. The bill also
makes clear that multi-State regional technical assistance
programs are appropriate vehicles for this activity under the
Act.
Although the technical assistance programs funded through
section 1442(g) have been very successful in most instances,
some concerns have been expressed. Some States are concerned
that these programs have not been directed to the small systems
most in need in their States. Two States have seen virtually no
activity within their borders supported by these grants. To
address these concerns, the bill makes two changes to section
1442(g). First, nonprofit organizations receiving grants to
provide technical assistance must consult with each State in
which any assistance activity is to be conducted. And second,
the Administrator is to assure that the distribution of funds
under section 1442(g) (as it is directed through these
organizations) achieves an equal allocation among the States.
section 15. capacity development; finance centers
Summary
Within 4 years of enactment, each State is to develop and
implement a capacity development strategy to assist public
water systems that do not have technical, managerial and
financial capacity to comply with the requirements of the Safe
Drinking Water Act. The drinking water primacy agency in the
State is to report to the Governor 2 years after the strategy
is adopted and every 3 years thereafter on progress toward
improving the capacity of public water systems in the State.
Each State is to obtain the legal authority or other
means to prevent the startup of new public water systems that
do not have the capacity to comply with the requirements of the
Safe Drinking Water Act. States that have not adopted this
authority lose 5 percent of their SRF grant in 1999, 10 percent
in 2000 and 15 percent each year thereafter.
Within 1 year after the date of enactment, each State is
to prepare a list of public water systems that are in
significant noncompliance with the requirements of the Safe
Drinking Water Act. The State is to report on its efforts to
bring such systems into compliance, through capacity
development or enforcement actions, 5 years after enactment.
Grants to the existing network of Environmental Finance
Centers are authorized at $2.5 million per year through the
year 2003. The Centers are directed to establish a capacity
development clearinghouse for public water systems.
Discussion
Some small systems, most often those owned and operated
by groups of homeowners or other nongovernmental entities, do
not have the technical, financial or managerial capacity to
comply with the requirements of the Safe Drinking Water Act.
Many of these systems were built before any health standards or
monitoring requirements were imposed. They have little
experience with financing capital projects and have often
relied on the financial assets of the system owner to get bank
loans. They may have deteriorating distribution systems that
impose large capital needs, along with the costs for treatment
recently imposed by the Safe Drinking Water Act.
Although some of these systems are located in isolated
rural areas, more than one-half are located in standard
metropolitan statistical areas and are within one-half mile of
a neighboring water system.
Several States have developed new initiatives to address
the problems of these systems. The leaders in the field are
Maryland, Washington, Connecticut, Pennsylvania and West
Virginia. There are many options available to address the
problems of these systems, including operator training,
financial planning and changes in the source of water supply,
management and ownership of the system. The essential elements
of a successful capacity development program appear to be:
authority to prevent the creation of new, nonviable systems;
resources to provide on-site technical assistance and training
for system operators; and resources to encourage restructuring
ranging from cooperative agreements where systems share
management and engineering services to changes in ownership
that merge small systems with neighboring systems that have a
large customer base and access to capital financing.
In its report, Technical and Economic Capacity of States
and Public Water Systems to Implement Drinking Water
Regulations, EPA described the authorities that have been
adopted by several States to ensure that new systems have
capacity:
``A number of States are developing or implementing
programs to ensure the viability of new small water
systems. In general these States are requiring that
their proposed systems will be viable over the long-run
before allowing the system to be built and operated.
For example, the States of Connecticut, Maryland and
Washington use a permitting process to ensure that new
small systems comply with minimum design, operating,
and construction standards. These States also require
financial, operational, and management evaluations
before the installation of a proposed new system. An
additional approach to new system screening is to
require financially-backed assurances or guarantees of
viability.''
The bill includes four provisions to encourage other
States to address the capacity problem and to assist systems
that need capacity improvements.
First, each State is to adopt legal authority or other
means to ensure that new systems have the technical, financial
and managerial capacity to comply with the Act before they
commence operation. This authority is to be in place before
October 1, 1998. At a minimum it must be applicable to new
community water systems and new nontransient noncommunity water
systems. EPA is to provide guidance on the various means that
would fulfill this requirement. The guidance is to be developed
in consultation with the States.
Second, each State is to maintain a list of the systems
that are in significant noncompliance with the requirements of
the Act. At the beginning of 1994, more than 500,000 people
were served by community water systems that were in significant
noncompliance with the Act. The purpose of section 1418(b) is
to give high priority to resolving the problems of systems on
this list. The term 'significant noncompliance' has been
defined by EPA and the definition is to be used for this
purpose unless modified by guidance that is developed in
consultation with the States. The States are to identify the
reasons that each system on the list is in significant
noncompliance. States are to use the capacity development
strategies implemented under section 1418(c) to address the
needs of the systems on this list that are in noncompliance
because they lack the technical, managerial and financial
capacity to comply. States are to report to the Administrator 5
years after enactment on the success of enforcement and
capacity development assistance in bringing the systems on the
list into compliance.
Third, each State is to develop and implement a capacity
development strategy to assist public water systems in
acquiring and maintaining the technical, managerial and
financial means to comply with the requirements of the Safe
Drinking Water Act. The strategy is to include criteria to
identify systems that need assistance, methods to improve
capacity and the means to measure progress in developing
capacity. The State agency with primary enforcement
responsibility is to report to the Governor and the public on
the effectiveness of the strategy 2 years after it has been
adopted and every 3 years thereafter.
EPA is directed to provide several types of assistance to
those States implementing capacity development strategies.
First, EPA is to disseminate information on the capacity
development strategies that are already being implemented by a
few States. Second, EPA is to initiate a partnership with the
States to recommend model operator training and certification
requirements. Third, EPA is to publish guidance developed in
consultation with the States on the legal authorities and other
means that States can use to ensure that new community water
systems and nontransient noncommunity water systems have the
capacity to comply with the Act before commencing operations.
Fourth, EPA will estimate the impact of each national primary
drinking water regulation on capacity at the time that it is
promulgated.
EPA is also to use the knowledge gained through the
capacity development strategies of the States to modify
regulations for variances and exemptions to make them more
workable for small systems.
Fourth, the bill authorizes the Administrator to support
capacity development studies, training and technical assistance
delivered by the existing network of Environmental Finance
Centers. A national clearinghouse on capacity development is to
be located at one of the centers. In addition, the centers are
to develop techniques that aid in identifying systems that are
not likely to have the capacity to comply, ensure that new
systems do have sufficient capacity and bring existing systems
with a history of significant noncompliance into compliance.
The bill authorizes $2.3 million per year through the year 2003
for this purpose.
section 16. operator and laboratory certification
Summary
Each community water system or nontransient noncommunity
water system receiving assistance from a State Revolving Loan
Fund is to be operated by a trained and certified operator. If
a system that has received assistance is operated by a person
who is not certified, the Administrator is to withhold funds
from the SRF capitalization grant of the State in which that
system is located in an amount equal to the assistance that was
provided to the system. Systems applying for assistance are to
make a commitment to train and certify operators before new
treatment equipment supported by SRF loans or grants goes into
operation.
The Administrator is to initiate a partnership with the
States to develop recommendations regarding operator
certification and to publish information for the States to use
in designing training programs. However, the determination as
to the level of training necessary to receive certification is
to remain with the States.
The Administrator's guidance may also cover certification
for laboratories that perform testing to meet the monitoring
requirements of national primary drinking water regulations.
Discussion
Most States have a drinking water system operator
training and certification program, but a few States have no
certification requirements at all. Experience prerequisites,
testing, certification renewal and continuing education may or
may not be required in a State program and the size of the
systems covered by certification requirements varies.
In a 1991 report ``A Study of State Operator
Certification Programs'', EPA found that 11 States require all
public water system operators be certified, and 5 States
require all public water systems that use treatment to employ
certified operators. Nine States require all community water
systems to have certified operators and 2 States require all
community water systems that use treatment to have certified
operators. However, there are 15 States with operator
certification programs that explicitly exclude systems serving
fewer than 500 people. These exemptions are significant because
62 percent of all community water systems nationwide serve 500
people or fewer.
The lack of adequate operator certification and training
requirements, especially for small systems, can create
compliance problems. Complex technologies require proper
installation and maintenance and technical expertise to perform
as intended.
In addition, monitoring and sampling done by a trained
drinking water system operator are more likely to produce
accurate results. Sampling is best done by a person trained to
take samples and interpret the results. Untrained operators are
more likely to make errors which can produce invalid and costly
``false'' positive.
The bill recognizes the importance of operator
certification and training in several ways. Loans and grants
provided from the new State Revolving Funds may include the
costs of training operators for the treatment plants that will
be built with the loan or grant. The new variance program for
small systems established under section 1415(e) of the Act
includes training considerations for operators of the treatment
technologies that are employed under the conditions of the
variance. The bill also adds a new program for capacity
development that includes training and technical assistance
across the range of duties assumed by the operator of a
drinking water system.
Section 16 of the bill requires that the operators of
systems that receive assistance under the new SRF grant program
be trained and certified. If a system is applying for a loan or
grant and does not now have an operator who is trained and
certified, the system must make an enforceable commitment to
meet this condition prior to the operation of any treatment or
other equipment that is obtained as the result of the
assistance. This provision does not require each system to have
its own operator. Once a system has received assistance, the
requirement for a trained and certified operator applies in
perpetuity.
If EPA determines that a system that has received
assistance under an SRF program is being operated by a person
who is not trained and certified, a sanction is applied to the
State's revolving loan fund. In that case, the Administrator
may either withhold an amount from a future grant to the fund
or ask that the amount be repaid to the Federal Government from
monies in the fund. The amount withheld or repaid is to be the
amount of assistance that the system received from the State's
SRF.
EPA is to initiate a partnership with the States to
develop information and recommendations that will be useful in
operator training and certification programs. But the guidance
may not establish mandatory conditions for certification. The
level of training that is requisite for certification in any
State that has primary enforcement responsibility under section
1413 is to be determined by that State. The Administrator may
also allow States that do not have primacy (Wyoming) to carry
out training and certification programs. Training and
certification programs in nonprimacy States are to be
consistent with the guidance issued by EPA.
The bill also addresses certification of the laboratories
that test drinking water samples for compliance purposes. The
guidance that EPA develops for operator certification may also
include guidance to the States for certifying these facilities.
section 17. source water quality protection partnerships
Summary
Over the past 20 years, the Safe Drinking Water Act has
focused principally on monitoring and treatment of drinking
water to protect public health. Although the 1986 Amendments
added pollution prevention provisions for sole source aquifers
and the areas around the wellfields of public systems,
protecting the quality of source water to avoid the expense of
treating contaminated water has not been a major part of the
national program. However, building on the lessons from the
wellhead protection efforts made under the 1986 Amendments, S.
1316 authorizes a new source water quality protection
partnership program to encourage the development of locally-
driven, voluntary, incentive-based efforts by public water
systems, local governments and private parties to respond to
contamination problems that would otherwise require treatment.
The bill provides for the delineation of source water
protection areas for each community water system and, for
priority source water areas, vulnerability assessments. The
delineations and assessments are to be completed within 60
months, but may be conducted on a priority-based schedule to
the extent that Federal funds are insufficient to pay for the
delineations and assessments. States may use up to 10 percent
of their SRF capitalization grants for 1996 and 1997 to pay for
the delineation and assessment work.
States may establish source water quality protection
partnership petition programs. The purpose of a State petition
program is to identify voluntary, incentive-based source
protection measures to prevent contamination of drinking water
and to redirect Federal and State financial and technical
assistance to support those measures.
Public water systems and local governments (in
partnership with other persons who may be affected by these
measures) may submit a petition to a State with a program
seeking assistance to carry out the recommendations of the
partnership.
Petitions may only address contaminants that are subject
to promulgated or proposed regulations and that are detected at
levels that are not reliably and consistently below the maximum
contaminant level.
States may use up to 10 percent of their annual SRF
grants to provide loans to carry out projects that are
recommended by partnerships with petitions approved under a
State program.
Discussion
The Safe Drinking Water Act traditionally has governed
the quality of drinking water through standard setting,
monitoring, treatment, and enforcement. Other than programs to
control underground injection, and to protect wellhead areas
and sole source aquifers, source water protection has been the
domain of the Clean Water Act. Thus, the only options typically
available to community water systems finding contaminants in
their water supply have been treatment or the development of
new water supplies. Efforts by community water systems to
access Clean Water Act programs and other water quality
protection measures indirectly, through agencies outside the
drinking water regulatory arena, have been difficult.
To remedy this problem, the bill adds a new section to
the Safe Drinking Water Act that provides a means other than
treatment for community water systems to address problems or
emerging problems of contamination. The bill does not require
States to adopt a new regulatory framework. Rather, the new
section 1419 provides for the delineation and assessment of
source water areas and for the establishment of state Source
Water Quality Protection Partnership Petition Programs. The
petition process is designed to facilitate the development of
voluntary, locally-driven, incentive-based partnerships for the
protection of source water.
Recognizing the success that has been achieved locally
through watershed initiatives that involve all appropriate
stakeholders in defining both problems and solutions, section
1419 seeks to engage local governments, community water
systems, and upstream stakeholders in partnerships to respond
to contamination issues facing community water systems. Through
the petition process, partnerships will be able to leverage
information and technical and financial assistance available
through the Clean Water Act and other State and Federal water
quality programs.
The petition program is a common-sense approach, crafted
to avoid Federal and State intrusion into the relationships
between local communities and their upstream neighbors and to
allow source water quality concerns to be addressed in a
cooperative, non-adversarial process. The new program is
intended to add momentum to a growing number of success stories
where local communities, farmers and other upstream entities
have worked together through watershed planning to address
source water concerns.
A new section 1419 requires States to delineate (either
directly or through delegation) all source water areas for the
community water systems within the State within 5 years. For
those source water areas considered to be a priority by the
State, vulnerability assessments are also required to be
completed.
Delineation and assessment can be an expensive and
burdensome requirement on the States. The bill addresses the
potential burden in several ways. First, a State may set aside
up to 10 percent of its SRF capitalization grant in 1996 and
1997 to carry out delineations and vulnerability assessments.
This amount remains available for a period of 5 years. If this
amount of funding is not sufficient to pay for all delineations
and assessments, States are only required to delineate and
assess priority source water areas that can be addressed with
available funds.
Second, the bill gives each State the authority to decide
how delineations are to be carried out and to define the degree
of hydrogeological data needed for a delineation. This allows
States to tailor delineation requirements to reflect the
resources of the community water system and the nature and
extent of the activities taking place within the source water
areas.
Third, delineations that have already been completed
under other State or Federal programs, such as State wellhead
protection programs, may be used to satisfy the delineation
requirements of this section.
In conducting vulnerability assessments to assess the
risks to drinking water in priority source water areas, a State
should focus on contaminants of greatest public health concern.
To provide for greater consistency in the conduct of
assessments, States are strongly encouraged to use existing
assessment data gathered under other State and Federal programs
and guidance developed by EPA under other Federal laws.
The bill authorizes States to develop and implement
petition programs through which community water systems or
local governments may complement drinking water treatment by
seeking assistance to support the work of local voluntary,
incentive-based partnerships to reduce the presence of
contaminants in the community's drinking water supplies through
coordinated source water protection activities. The partnership
petition program is intended as a means to direct or redirect
financial and technical assistance available through other
State and Federal programs to support implementation of local
partnership recommendations. The contaminants that may be
addressed by a petition are regulated microbial contaminants,
including those that will be regulated under the Enhanced
Surface Water Treatment Rule, and contaminants that occur in a
community water system at levels that exceed a maximum
contaminant level (or a proposed maximum contaminant level) or
that are not reliably and consistently below the MCL (or a
proposed MCL), based on reliable monitoring data.
A petition program targets Federal and State assistance
through local partnerships to address those contaminants
occurring at levels that would otherwise require a community
drinking water system to install treatment facilities, now or
in the future, to comply with the Safe Drinking Water Act. In
responding to a petition, a State has the authority to balance
the risks being addressed by that petition against other
competing State water quality concerns.
The objective of source water protection is to reduce the
presence of contaminants in drinking water by working with
upstream entities whose activities may affect contaminant
levels in raw water supplies. A response to a petition may or
may not affect land uses in the source water area through
voluntary application of best management practices, but does
not require source reduction that mandates reductions or
prohibitions on the use of inputs that could lead to
contamination of the drinking water supplies.
Each State is to determine whether to establish a
petition program within 1 year of enactment and publicly
announce the determination, providing an opportunity for public
notice and comment, and at least one hearing if requested by
any community water system. Up to 10 percent of the SRF grant
for any year is available to make loans to develop and
implement the recommendations of source water protection
partnerships.
In setting forth the possible elements of a petition, the
bill assures that partnerships are a locally-developed,
cooperative framework for source water protection. To the
maximum extent practicable, all appropriate stakeholders should
be invited and encouraged to participate in the partnership.
Furthermore, the partnership should be used to educate upstream
stakeholders to the contamination concerns and financial
constraints faced by the downstream community water system, and
the community water system should be apprised of those
voluntary and non-voluntary actions that upstream stakeholders
are already taking to reduce the likelihood that contaminants
will enter the drinking water supply of the community water
system.
For a partnership to be successful, the drinking water
supplier and entities located in source water areas, such as
farmers, who actually implement partnership recommendations,
must be involved. The terms `other persons,' `each person,' and
`persons' used in referring to the source water entity
component of voluntary partnerships mean farmers and other
source water entities whose participation is essential to the
success of a partnership, including those who can offer
technical or financial assistance or who actually implement
partnership recommendations. The requirement to outline how
voluntary and other efforts already undertaken by source water
entities are taken into account is a method to credit efforts
already underway to ensure that limited resources are targeted
where additional progress can have the most significant effect
on drinking water quality.
A State with a program is to respond to a petition within
120 days of submission, and may approve a petition if it meets
the requirements of the State program. The notice of approval
is to include (1) identification of technical, financial or
other assistance the State will provide to assist in
implementing the recommendations of the partnership, based on
the relative priority of the problem raised in the petition in
relation to other water quality needs in the State, (2) a
description of Federal or State technical or financial
assistance available in other programs, and (3) a description
of activities the State will undertake to coordinate Federal
and State assistance. If a State disapproves a petition, the
partnership may be resubmit an amended petition if there is new
information, conditions change, or the assistance requested is
modified.
Section 1419 also authorizes EPA to make grants to States
to cover up to 50 percent of the costs of administering a State
Source Water Quality Protection Partnership Petition Program.
The grants are available to those States whose petition
programs are consistent with guidance issued by EPA. In using
its authority to approve State grants, however, EPA cannot in
any way, directly or indirectly, require a State to impose
enforceable mechanisms to achieve source water protection in
connection with a petition program or apart from that program.
EPA guidance is intended to provide information that may
be helpful to States in the development of a partnership
program under this section and to local drinking water entities
in the development of partnerships and the assessment of source
water quality. At a minimum, the guidance shall include
recommended approval or disapproval criteria; submission
procedures; assessment criteria; a description of available
Federal or State technical or financial assistance; and the
steps EPA will undertake to coordinate technical and financial
assistance with the goals and objectives of this section.
A State may respond to petitions where appropriate by
facilitating locally developed, voluntary partnerships through
technical assistance and financial incentives available under
existing water quality, agriculture and other programs, and by
the use of up to 10 percent of a State's annual SRF
capitalization grant to make loans to implement partnership
recommendations.
Source water quality protection partnerships are
voluntary. They are based on the premise that land owners will
be responsive when approached by their neighbors with a defined
drinking water problem that could be addressed through source
water protection efforts and invited to participate in a
voluntary, incentive-based partnership.
This section does not preempt State or local law or
prevent States or local governments from undertaking their own
source water protection programs pursuant to State or local
law. Moreover, if a State receives information through an
assessment or deliberation, the State may use that information
in the implementation of as source water protection program
under State or local law. In addition to being voluntary for
States and localities, nothing in this section requires any
source water entity or entities to participate in a partnership
established pursuant to this section, or to participate in any
programs or assistance provided by a State in response to a
petition. The voluntary premise of this section is further
reinforced by limiting both assistance requested by a
partnership and a State response to a petition to technical,
financial or other forms of non-regulatory assistance. This
section neither creates any new regulatory authorities nor
prohibits regulation established pursuant to other authorities.
The voluntary foundation of the petition program makes it
imperative that regulatory mandates not be employed in response
to a petition. To do so would be in direct contradiction of the
program's voluntary basis. Enforceable regulations, if applied,
should be undertaken through other administrative structures
normally utilized for those purposes. Nothing in this section
precludes community water systems or local governments from
independently pursuing voluntary, incentive-based partnerships
under other authority.
section 18. state primacy; state funding
Summary
Under the Safe Drinking Water Act, EPA establishes
drinking water quality standards that apply to all public water
systems. Assuring compliance with these standards is a task
achieved almost entirely by the States. Each State that adopts
a regulation that is no less stringent than the Federal
standard is granted primary enforcement responsibility for that
regulation. 55 of the 57 States and territories have primacy
for most regulations that have been issued under the Act.
Under current law, the deadline for a State to submit its
regulations to retain primacy for a new or revised drinking
water standard is 18 months after EPA has promulgated the
national rule. Section 18 of the bill extends that deadline to
24 months. In addition, the bill provides States with
``interim'' primary enforcement authority during the period
after the State regulation is submitted and until such time as
it is approved or disapproved by the Administrator. The State
regulation is effective during this interim period.
EPA makes an annual grant to each State to support its
activities to carry out the Act. The bill reauthorizes these
grants for Public Water System Supervision (PWSS) programs at
$100 million per year through the year 2003. In addition,
States are authorized (under the new SRF program added by
section 3 of the bill) to set aside funds from their annual
capitalization grants in amounts up to the amount of their PWSS
grant to use for administration of the program.
Discussion
Strong and effective State drinking water programs are
the key to successful implementation of the Safe Drinking Water
Act. Currently, 55 of the 57 States and territories (all except
Wyoming and the District of Columbia) have primary enforcement
responsibility (called primacy) for the Public Water System
Supervision program. However, many States are struggling to
provide adequate funding and personnel to administer PWSS,
given the increased workload imposed by the 1986 Amendments and
tight State budgets.
Federal and State resources devoted to drinking water
have increased in the past few years. In FY 1988, State
resources totaled $63 million and Federal grants $33 million.
By FY 1993, the resources had increased to $82 million in State
funds and $60 million in Federal PWSS grants, for a total of
$142 million. The Federal appropriation for FY 1995 was $70
million
However, the need for resources has increased at an even
faster pace. Between 1988 and 1993, program needs at the State
level increased by 140 percent, far more than the 76 percent
increase in funding. In 1993, EPA and the States prepared a
careful analysis of this funding shortfall. The results of this
study are set forth by EPA in its report entitled Technical and
Economic Capacity of States and Public Water Systems to
Implement Drinking Water Regulations: Report to Congress,
(September, 1993). That analysis indicated that a total of $304
million is needed to effectively implement drinking water
programs in all States. Funds available from Federal and States
sources in 1993 totaled $140 million--leaving a gap of $162
million.
This shortfall has limited the ability of States to
implement the drinking water program. For example, four States
missed the December 31, 1992 deadline for adoption of rules
concerning surface water treatment and total coliform bacteria.
California and Pennsylvania notified EPA that they could not
adopt a recent rule concerning lead because of the high cost of
the State responsibilities under that rule. And EPA has
communicated with no fewer than 8 States on the need to
increase resources for administration of PWSS or lose primacy
under the Act.
The funding shortfall also has cost implications for
local public water systems. The dollar impacts at the local
level may actually be much larger than the gap measured by EPA
and the States. Many of the national primary drinking water
regulations have included opportunities for States to reduce
costs by tailoring requirements to the conditions actually
experienced by their drinking water systems. But States can
only make use of this flexibility if they have adequate staff
and administrative support to make the case-by-case
determinations necessary to grant the waivers and exceptions
that are available under EPA's rules. The funding shortfall in
State budgets is magnified at the local level in the form of
rigid, one-size-fits-all prescriptions that could be avoided if
more resources were available to the States.
The reforms in science, selection of contaminants and
standard setting made by the bill will slow the pace of new
responsibilities. The bill also addresses the shortfall in
State program resources in two, more direct, ways. First, the
bill increases the authorization for PWSS grants from $40
million per year (in current law) to $100 million per year
through 2003. \7\ Second, the bill allows a State to use a
portion of its annual SRF capitalization grant for the
administration of the PWSS program. The amount that the State
can take from the SRF for this purpose is equal to the amount
the State receives under section 1443 as a PWSS grant.
\7\ The appropriation for fiscal year 1995 at $70 million was
significantly more than the most recently authorized level.
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States are delegated primary enforcement responsibility
(primacy) for national primary drinking water regulations
pursuant to section 1413 of the Act. To attain primacy, the Act
requires that a regulation adopted under State authority that
is no less stringent than the Federal regulation be submitted
to EPA by the State within 18 months of the date on which EPA
promulgates the national regulation. Section 1412(b)(10) of the
Act provides that the national regulation is applicable to
local public water systems in the same timeframe--18 months
after promulgation of the national rule. This schedule has
caused a great deal of confusion; first because States are
hard-pressed to complete their new rules in the 18-month
period. And second, because local compliance is required before
EPA has an opportunity to review and approve the State
regulation.
The bill addresses this problem with three amendments.
Section 18 of the bill gives the States 2 years (instead of 18
months as in current law) to adopt and submit their rules. The
bill amends section 1412(b)(10) to give local water systems 3
years before compliance with a new rule is required. This
provides a full year between the issuance of a State rule and
the deadline for local compliance that should facilitate a less
harried implementation of new requirements. In addition, a new
section 1413(c) is added to the Act granting States ``interim''
primary enforcement authority during the period after their
rule is submitted to EPA and the time that EPA approves or
disapproves the State rule. Under current law, it is not clear
which rules apply after a State has adopted its own
requirements and before EPA has officially approved the State
rule. The confusion is removed by giving States primacy during
this interim period.
section 19. monitoring and information gathering
Summary
Each national primary drinking water regulation includes
monitoring requirements to assure continuing compliance with
the maximum contaminant levels established by the regulation.
These monitoring requirements may impose substantial costs on
public water systems. Although EPA has included opportunities
for cost reduction (through waivers based on contaminant use or
water supply vulnerability), States have been unable to make
full use of this flexibility due to a lack of resources in some
State programs and caution by EPA in approving State waivers.
The bill includes several reforms to reduce monitoring
costs. First, the bill requires the Administrator to review and
revise existing monitoring requirements for not fewer than 12
contaminants within 2 years.
Second, the bill authorizes States to develop and
implement their own monitoring regime for most contaminants.
The State requirements may be less stringent than Federal
requirements but are to assure compliance and enforcement with
the health standards. This authority takes effect after the
first cycle of monitoring under Federal regulations. The
authority does not apply to monitoring for contaminants that
are pathogenic organisms. The State program must provide for
monitoring at a frequency consistent with Federal requirements
in systems where a contaminant has been detected, unless
monitoring indicates that the level of the contaminant is
reliably and consistently below the maximum contaminant level.
The Administrator is to approve or disapprove a State
alternative monitoring program within 180 days of submission or
may subsequently withdraw a State's authority to establish
monitoring requirements, if the State program does not ensure
compliance and enforcement.
Third, the Administrator or a State may suspend quarterly
monitoring requirements applicable to small systems for any
contaminant (other than a pathogenic organism, a contaminant
that causes an acute effect, or a contaminant formed in the
treatment process or distribution system) that is not detected
during the first quarterly sample in a monitoring cycle and the
Administrator or the State determines that detection is
unlikely to occur in subsequent sampling.
The bill also redirects the program for monitoring for
``unregulated'' contaminants. The authorities of current law
are replaced with listing and sampling provisions designed to
gather information on unregulated contaminants for the
development of future national primary drinking water
regulations. The Administrator may list up to 20 unregulated
contaminants for this purpose. All systems serving more than
10,000 persons are required to monitor for the unregulated
contaminants listed by the Administrator. Each State is to
establish monitoring requirements for these contaminants for a
representative sample of small systems within the State. An
annual appropriation of $10 million is authorized to offset the
costs of this monitoring. In addition, the Administrator may
set aside $2 million from each annual appropriation for the
State Revolving Fund grant program to pay for testing costs
associated with monitoring for unregulated contaminants at
small systems.
The Administrator is to establish a national data base
containing information from monitoring for regulated and
unregulated contaminants and other reliable information on the
presence of contaminants in drinking water.
Authority to collect information for the purpose of
developing regulations or to determine compliance on a case-by-
case basis is streamlined by authorizing the Administrator to
gather information with procedures other than a formal
rulemaking.
Discussion
Each national primary drinking water regulation that
establishes a maximum contaminant level (MCL) or treatment
technique for a particular contaminant typically also includes
monitoring requirements to determine whether that contaminant
(or an indicator of the contaminant) is present in the water
served by public water systems at levels exceeding the MCL.
Existing monitoring requirements have been shaped by the
Agency, as the statute itself provides very little guidance on
the form that monitoring requirements are to take.
Although national primary drinking water regulations have
included some flexibility to grant waivers from monitoring
requirements, based on the likely presence of the contaminant
or the vulnerability of the source water supply, some States
have not been able to take full advantage of this flexibility
to reduce monitoring requirements for public water systems. In
some States there has not been adequate personnel to collect
and review the data necessary to determine that a waiver of
monitoring requirements is warranted. As a result, and
especially for very small systems, monitoring for contaminants
is now imposing a substantial cost burden on public water
systems.
Section 19 of the bill includes three provisions that are
intended to reduce the monitoring costs imposed by the Safe
Drinking Water Act. First, the Administrator is to review
existing monitoring requirements for at least 12 contaminants
and make revisions to the requirements within 2 years if the
review indicates that the frequency or methods for monitoring
currently required are not needed to fully protect public
health. Revisions to monitoring requirements resulting from
this review may include additional grounds to waive monitoring
requirements for systems of a particular type or with water
supplied from a source of a particular type where the
contaminant is unlikely to occur.
Second, States that have primary enforcement
responsibility under section 1413 are authorized to develop
alternative monitoring requirements for specific national
primary drinking water regulations. These State requirements
may be less stringent (require less frequent monitoring) than
the Federal requirements and would be implemented in lieu of
those imposed by the national primary drinking water
regulation.
A less stringent monitoring regime developed by a State
cannot take effect until one full cycle of monitoring has
occurred under the national primary drinking water regulation
or State regulations that have been approved pursuant to
section 1413(a)(1) as no less stringent than the Federal rules.
This restriction on State programs is imposed to ensure that
systems that may be affected by a contaminant are likely to
detect the presence of the contaminant before the alternative
State program is put into place and to provide information that
the States may use to establish an alternative monitoring
regime.
Under the provisions of the bill, a system that has
detected a contaminant at quantifiable levels must continue to
monitor at the same frequency as required in the Federal rules
for a period of at least 5 years after the most recent
detection. The requirement that systems that have detected a
contaminant monitor no less frequently than provided under
Federal rules may be set aside if monitoring results for the
system indicate that the contaminant is only present at
quantifiable levels that are reliably and consistently below
the maximum contaminant level.
A State monitoring program is to be adopted by a
rulemaking that provides notice to the public and an
opportunity for comment. The alternative monitoring
requirements must be based on the best available science and
supported by data collected by accepted methods. These are the
same standards for sound science that apply to EPA's rules
establishing Federal monitoring requirements. Modifications to
the Federal rules are to be based on the likelihood that the
contaminant will occur in public water systems considering the
characteristics of the contaminant and the vulnerability of the
systems to contamination.
The fundamental standard that is to guide States in
developing these alternative monitoring programs is the need to
ensure that Federal health standards will be met and enforced.
Monitoring requirements that undermine compliance or preclude
enforcement would be disapproved by the Administrator under the
provisions of the bill. As an example, if an analytical method
allowed under a State program is not sufficiently reliable to
form the basis for the State to take an enforcement action
against a system for a violation of an MCL (as indicated by the
method), the Administrator is to disapprove the State program.
If after operating for a period of years, it is apparent that
noncompliance rates for one or more MCLs has increased
significantly under the monitoring program adopted by a
particular State, the Administrator is to withdraw the
authority for that State to establish alternative monitoring
rules.
Because the monitoring regime for pathogenic organisms
under the Surface Water Treatment Rule is already carefully
tailored to reduce burdens while assuring the safety of
drinking water, States are not authorized to develop
alternative monitoring requirements for any microbial
contaminants or indicators of microbial contaminants.
In addition, a State program cannot reduce the frequency
of monitoring for any system that is required to treat for a
contaminant formed in the distribution system. For example,
this restriction addresses the lead and copper rule which
contains an action level triggering treatment measures,
including corrosion control and service line replacement, when
the action level is exceeded. Any system that is required to
adopt these or other measures because the action level for lead
has been exceeded in the requisite number of cases must
continue to monitor under rules that are no less stringent than
the national primary drinking water regulation for lead and
copper.
Section 1413 of the Act sets forth the conditions under
which a State may assume primary enforcement responsibility for
national primary drinking water regulations. Generally, current
law provides that a State must submit a regulation adopted
under State authority that is no less stringent than the
Federal regulation and that meets other conditions established
by EPA. If EPA approves this regulation, the State is
considered to have primary enforcement responsibility. Section
1413 applies not only to the health standard in a primary
drinking water regulation, but to the monitoring requirements,
as well. The bill makes several modifications in the
application of section 1413 to monitoring programs that are
developed by States pursuant to the new authorities in section
1445(a)(1)(D). The modifications are designed to ensure that
States will be able to exercise the authorized flexibility in
practice without EPA micro-management.
First, the State monitoring regulations need not be as
stringent or more stringent than the Federal requirements.
States may adopt less stringent (less frequent or less
analytically rigorous) monitoring requirements, provided that
the State monitoring program ensures compliance with, and
enforcement of, national primary drinking water regulations.
Second, the information requirements imposed on States to
support the submission of an alternative monitoring program for
review under section 1413 are not to be more extensive than
necessary to facilitate the Administrator's decision to approve
or disapprove the proposed State program. Since the
Administrator is to approve a proposed program, unless it does
not ensure compliance with, and enforcement of, a national
primary drinking water regulation, the information required to
support a State proposal should be relevant to compliance and
enforcement issues. EPA is to develop the information
requirements in consultation with the States taking care not to
frustrate the intent of this provision by requiring unnecessary
data that States are in no position to supply.
Third, under current law State regulations submitted
under section 1413 are to be approved or disapproved by the
Administrator within 90 days. The bill extends this period to
180 days for monitoring programs developed by States under
section 1445(a)(1)(D) and provides that a State program shall
be deemed approved if the Administrator has not taken action to
approve or disapprove a State proposal within that period of
time.
Fourth, consistent with the ``interim'' primacy authority
added to the Act by section 18(a)(2) of the bill, a State
program may become effective any time after it has been
submitted to the Administrator and on a date selected by the
State. However, as noted above, an alternative monitoring
program cannot be put into place until one full cycle of
monitoring under the national primary drinking water regulation
(or an equally stringent State regulation) has been completed.
Fifth, States are not to lose primacy (primary
responsibility for enforcement of the Act) if a monitoring
program submitted under section 1445(a)(1)(D) is subsequently
withdrawn by the Administrator. If EPA determines that a State
program is not adequate to ensure compliance with, and
enforcement of, national primary drinking water regulations,
EPA can withdraw the authority of the State to operate the
program. This will not automatically lead to a loss of primacy,
provided that the State is able to impose monitoring
requirements that otherwise meet the requirements of section
1413 of the Act. Because one full cycle of monitoring will have
been conducted under rules that meet the requirements of
section 1413 before a State can institute an alternative
program, the State will likely have authority to maintain
primacy.
EPA is to review monitoring programs developed by the
States under this authority not less often than every 5 years.
The Administrator may withdraw a State's authority to establish
monitoring requirements under section 1445(a)(1)(D). If the
Administrator determines that withdrawal is justified, the
Administrator is to notify the State and provide the State with
an opportunity to correct any deficiencies in the program.
The authority to develop alternative monitoring programs
is also available in the States that did not have primary
enforcement authority on the date of enactment (Wyoming and the
District of Columbia). The Governor (or equivalent executive
officer) may request the Administrator to modify the monitoring
requirements in these jurisdictions to the same extent that
modifications are authorized in States with primacy.
The Administrator is to issue guidance to assist the
States in developing alternative monitoring programs. This
guidance is also to address the waivers that may be available
to small systems pursuant to section 1445(a)(1)(E), as
described below.
The third provision in the bill intended to reduce the
cost of monitoring is section 19(a)(3) which reduces monitoring
requirements for small systems (those serving a population of
10,000 or less) by eliminating multiple tests for some
contaminants where an initial sample during a cycle of tests
does not detect the presence of the contaminant and the
Administrator or the State determines that the contaminant is
not likely to be detected in future samples. Many of the
contaminants addressed in national primary drinking water
regulations are listed because of their chronic effects (they
cause cancer or other adverse effects as the result of long
periods of exposure). The maximum contaminant levels for these
substances are based on preventing health effects that may only
develop after decades or an entire lifetime of exposure.
Because the concern is not for an ``acute'' effect (an effect
typically associated with a single or small number of exposures
that causes illness or disease in the near-term), preventing
disease does not always require frequent monitoring.
The Agency's monitoring requirements for contaminants
with ``chronic'' effects generally require small systems to
monitor for the substance in 1 year out of each three. During
the year of monitoring, the system is required to test one
sample each quarter. For small systems, especially systems
drawing from ground water sources, it is unlikely that a
contaminant not detected at all in the first test will
subsequently be found in a later sample.
Recognizing the high cost for some of the tests, the low
probability of finding the contaminant in the second, third or
fourth test and the ``chronic'' nature of the health threat
posed by these specific contaminants, Congress enacted
amendments to the Fiscal Year 1993 appropriation bill for the
Environmental Protection Agency (P.L. 102-389) that allowed
States to waive subsequent quarterly monitoring for a group of
contaminants for small systems (serving a population under
3,300) for any one of these contaminants that was not detected
in the first test. Several States took advantage of these
amendments and reported considerable savings for small systems
in monitoring costs.
The bill extends a similar waiver of monitoring
requirements to systems serving populations up to 10,000. The
waiver provides that additional monitoring for some
contaminants may not be required (as determined by the
Administrator or the State), if the initial test in a cycle
fails to detect the contaminant and the Administrator or the
State determines that the contaminant is not likely to be
detected in future samples. If a test does detect the
contaminant the waiver does not apply, even if a subsequent
test during the same cycle indicates no detectable level. The
waiver is not available for microbial contaminants (or
indicators for microbial contaminants), for contaminants
associated with acute effects, or for contaminants formed in
the treatment process (e.g., disinfection byproducts) or the
distribution system (e.g., lead and copper).
In addition to monitoring requirements for contaminants
for which maximum contaminant levels have been established,
current law (section 1445(a)(2)-(8)) also includes requirements
for monitoring with respect to ``unregulated'' contaminants.
Under provisions of current law, EPA is to promulgate a
list of ``unregulated'' contaminants, establish monitoring
requirements with a frequency of at least once every 5 years
and require that the consumers on a system be informed if a
contaminant on the list is detected in the water supplied by
that system. Systems serving less than 150 service connections
are not required to pay for tests; funds are authorized for the
Agency to provide monitoring for these systems. These
provisions of current law have not been implemented as
intended.
Section 19(b) of the bill alters the monitoring program
for unregulated contaminants. The Administrator is to publish a
list of up to 20 contaminants within 3 years and update the
list every 5 years thereafter. Systems serving a population of
more than 10,000 are to monitor for the contaminants on the
list and report the results of the monitoring for inclusion in
the national occurrence data base discussed below.
Each State is to establish monitoring requirements for a
representative sample of systems serving a population under
10,000 in the State. The bill authorizes $10 million per year
to assist the States and individual systems in conducting the
monitoring for unregulated contaminants required by these
provisions. In addition, the bill reserves $2 million from each
annual appropriation for the SRF grant program to be used by
the Administrator to pay for the testing and laboratory costs
associated with monitoring for unregulated contaminants by
small systems.
The Administrator is to revise the list every 5 years
removing the contaminants for which sufficient information has
been collected to satisfy future regulatory needs. If a State
demonstrates that a particular contaminant on the list
established by the Administrator will not be found in that
State, the Administrator may waive the monitoring requirements
for that contaminant in that State.
The Administrator is required to establish a new data
base to better manage available information on the occurrence
of contaminants in drinking water supplied by public water
systems. One important use of the data base is to identify
contaminants that may warrant regulation in the future--those
that occur with a frequency and at a level that may be of
public health concern. If information on the health effects of
a contaminant indicates that it may pose a threat to the health
of persons, information from the data base would be used to
shape a national primary drinking water regulation for the
contaminant.
The data base is to be assembled within 3 years. It is to
include information on the occurrence of all the contaminants
addressed by national primary drinking water regulations. The
current information system maintained by the Agency only
includes data on violations of maximum contaminant levels for
the regulated contaminants. This new occurrence data base is to
include additional information derived from the monitoring that
is required by national primary drinking water regulations and
for listed unregulated contaminants. Whenever a system detects
the presence of a regulated or unregulated contaminant at a
quantifiable level, the system is to report that information
(to the State or to the Administrator) for the purpose of
including the information in the data base.
The data base is also to include information on
contaminants not currently regulated under the Act. Under other
provisions of the bill (see above), the Administrator is to
establish a monitoring program for unregulated contaminants
that may cover up to 20 substances. Information from this
monitoring program will be included in the data base. The
Administrator may also include in the data base reliable
information from other sources (including surveys conducted by
the Agency, other Federal departments or agencies or the
States) on the occurrence of contaminants in drinking water
supplied by public water systems.
Information in the data base is to be readily available
to the public including access by electronic means. Any person
may recommend that a particular contaminant be listed in the
data base. The Administrator is to periodically solicit listing
recommendations from the National Academy of Sciences and the
States. All recommendations for listing are to be accompanied
by reasonable documentation establishing that the contaminant
may occur in drinking water and that it may pose a threat to
human health as the result of its occurrence.
Section 1445 of the Safe Drinking Water Act provides the
basic authority for EPA to require regulated entities to
maintain records and other information, conduct monitoring and
make reports ``as the Administrator may reasonably require by
regulation.'' Section 1445 also authorizes the Administrator to
conduct inspections in order to determine whether a regulated
entity is complying with the Safe Drinking Water Act.
Some statutory requirements of section 1445 unnecessarily
complicate information gathering efforts; as a result, the
requirements undermine the Administrator's ability to ensure
compliance and protect public health. Accordingly, section
19(d) of the bill amends section 1445 to streamline these
authorities.
The principal modification relates to the Administrator's
establishment of recordkeeping, information gathering, and
monitoring requirements. Currently, such requirements may be
established only by regulation, subject to the full notice and
comment procedures of the Administrative Procedures Act. While
these procedures are appropriate in the case of generally
applicable requirements, they are inappropriate and cumbersome
in the case of information gathering at a particular facility
or at a small group of facilities.
The bill revises section 1445(a)(1) by deleting the
requirement that all information gathering be done by
regulation, allowing the Administrator to use other means to
gather general data and other data to assist the Administrator
``in determining, on a case-by-case basis, whether the person
has acted or is acting in compliance'' with the Safe Drinking
Water Act.
The bill retains the condition that recordkeeping,
information gathering, and monitoring requirements be
promulgated by regulation when imposed to assist the
Administrator ``in determining compliance with national primary
drinking water regulations,'' such as issuing generally
applicable monitoring requirements, and when imposed to assist
the Administrator ``in administering any program of financial
assistance'' under the Safe Drinking Water Act.
Monitoring required of public water systems is to be by
accepted methods, unless the monitoring is being carried out
for the purpose of testing new or alternative methods.
section 20. public notification
Summary
This section of the bill amends section 1414(c) of the
Act to ensure that consumers served by a public water system
receive timely and understandable information when the system
violates a requirement of the Safe Drinking Water Act. The bill
also requires each State and EPA to publish annual reports
informing the general public about the degree of noncompliance
with the Act.
Discussion
Current law requires each public water system to notify
consumers when violations of the Act occur. Under section
1414(c), a public water system is to notify people served by
the system of any violation of a maximum contaminant level, a
treatment technique requirement, a testing procedure
requirement, a monitoring requirement, or the schedule of a
variance or an exemption. If a violation poses a serious threat
to health, the notice must be provided within 14 days of the
violation; for other violations, notice must be provided within
a year. Current law also permits the Administrator to require a
public water system to provide notification about the
concentration levels of an unregulated contaminant that the
system has detected pursuant to monitoring under section
1445(a)(2)-(8).
Public notification is a powerful force for prevention.
Unfortunately, the current provisions of the Act are not
working effectively. The General Accounting Office reported
(``Consumers Often Not Well-informed of Potentially Serious
Violations,'' June, 1992) the following conclusions with
respect to public notification under current law and
regulations:
``On the basis of its review of 28 water systems in
6 States, GAO found that a variety of factors
contributed to high rates of noncompliance with the
public notification requirement. Together, the water
systems issued timely notice of only 17 of 157
violations. Of the other 140 violations in which timely
notice was not given, 103 violations involved serious
long-term health risks. Part of the problem can be
explained by limited enforcement by States against
noncomplying water systems and by limited oversight by
EPA. A major cause of noncompliance, however, involves
the public notification requirements themselves, which
have been difficult to understand and implement for
many operators--particularly those operating small
systems.
``Even if total compliance could be achieved, other
problems make the notification process less effective
than it should be at informing the public of problems
with their drinking water. For example, the notices
often do not clearly convey appropriate information to
the public concerning the health risks associated with
a violation and the preventive actions to be taken. GAO
also concluded that the public notification process
would be more effective in informing the public--and
easier to implement by water systems--if it focused
more on serious violations. ``Among GAO's
recommendations to improve the public notification
process are that the Administrator, EPA, (1) revise the
agency's public notification language so that it
highlights the risks posed by violations and uses less
technical language and (2) focus notifications more on
serious violations by allowing water systems to
consolidate notices for [less serious] violations and
education matters into a semiannual or annual report.''
Improving the effectiveness of public notification under
the Safe Drinking Water Act should be a high priority for EPA
and the States. The bill makes several substantive changes to
section 1414(c), along the lines recommended by GAO, to ensure
that violations with the potential for serious adverse health
effects as a result of short-term exposure are communicated
quickly and that all of the information provided to consumers
is in a form that is understandable and useful.
New subsection (c)(1) retains the existing requirement
that a public water system notify consumers of various types of
violations. It also retains the provision permitting the
Administrator to require a system to provide notification about
the concentration levels of unregulated contaminants. Public
water systems must also notify consumers when they are
operating under a variance or an exemption.
New subsection (c)(2) requires the Administrator to
promulgate regulations, after consulting with the States,
prescribing the manner, form, and content of giving notice. The
regulations are to make distinctions between violations that
are serious and frequent or continuing and those that do not
present a significant risk to public health.
To assure that States have sufficient flexibility to
adjust the requirements to fit local circumstances, the bill
provides that a State may establish alternative notification
requirements. In the case of violations that present a serious
risk to health, State regulations may address the manner
(broadcast, newspaper, posting, and door-to-door) to be used
for the notice and the form and content of the notice. In the
case of other violations (for which notice is required within 1
year), the State regulations may only address the form and
content of the notice. Nothing in the section authorizes a
State to waive the requirement that each water system provide a
direct written communication to each household served by the
system within 1 year of any violation covered by section
1414(c)(2)(D).
Alternative public notice requirements established by a
State are to provide for the same type and amount of
information as prescribed in the Act and implementing
regulations. Alternative requirements are to be reviewed by the
Administrator in the context of primacy determinations made
under section 1413.
The bill also distinguishes between violations that
require immediate action and those that do not. If a violation
has the potential to have serious adverse effects on human
health as a result of short-term exposure, the notice must be
distributed (to the State as well as to consumers) as soon as
practicable but no later than 24 hours after the violation. The
notice must clearly describe the violation, its potential
adverse effects, the remedial steps that the public water
system is taking, and whether people should resort to
alternative water supplies. In order to assure that the notice
is disseminated effectively, the bill provides that the State
may decide what manner of notice is most appropriate, either by
regulation or on a case-by-case basis after consultation
between the public water system and the State primacy agency,
but the manner must include one of the following: communication
through broadcast media, publication in the local newspaper,
posting, or door-to-door notification.
In the case of other violations, written notice must be
provided not later than 1 year after the violation and the
manner of notification must include one of the following:
inclusion in the first billing after the violation, inclusion
in an annual report, or distribution by mail or direct
delivery.
New subsection (c)(3) requires each State that has
primary enforcement responsibilities under the Act to issue an
annual report on violations of the Act, and requires the
Administrator to issue an annual report summarizing the State
reports (and similar reports by Indian Tribes).
section 21. enforcement; judicial review
Summary
Several modifications to the enforcement authorities of
the Act are made by the bill. The major changes are:
the Administrator is directed to notify local
elected officials before taking enforcement actions
against public water systems in nonprimacy States;
the Administrator or a State is authorized to
suspend enforcement action with respect to a
violation for a period of 2 years, if the violation
is to be corrected through a consolidation between
two or more systems during that period;
States are to adopt administrative penalties (of
at least $1000 per violation for large systems) to
facilitate enforcement of the Safe Drinking Water
Act; and
the maximum amount for an administrative penalty
imposed by EPA is increased from $5000 to $25,000
per violation; administrative penalties in amounts
greater than $5000 may only be imposed after a
full, on-the-record hearing.
Discussion
The bill amends section 1414 of the Safe Drinking Water
Act to improve and streamline enforcement authorities. Section
1414 authorizes the Administrator to issue compliance orders,
assess administrative penalties within certain limits, and
pursue civil actions in Federal district court. Enforcement
actions to correct violations of the Act can be taken both by
EPA and by a State with primary enforcement responsibility.
Because many community water systems are owned and operated by
local governments, accountable through elections to the
consumers served by the system, the enforcement authorities of
the Safe Drinking Water Act are structured and applied in a
manner different from other environmental laws.
The current enforcement system relies primarily on the
States. Section 1413 requires that, in order to grant a State
primary enforcement responsibility, the Administrator must find
that the State has adopted and is implementing adequate
enforcement procedures. Currently, 55 of 57 States and
territories have primary enforcement responsibility. As a
result, compliance with maximum contaminant levels and other
requirements of the Act is ensured primarily through State
actions. The Administrator also is authorized to bring
enforcement actions directly. But, before doing so, the
Administrator must notify the State, give the State a chance to
take appropriate action, and seek to provide advice and
technical assistance to the public water system.
This enforcement system works relatively well. However,
in part because of the many new regulations recently issued,
the overall rate of compliance remains lower than under other
Federal environmental laws. In fiscal year 1994, 43,354 public
water systems had violations with 19,568 of these violations
occurring at community water systems. Eight percent of the
systems reported violations of maximum contaminant levels.
Under the Safe Drinking Water Act in fiscal year 1994,
EPA issued 309 final administrative orders, 44 complaints for
administrative penalties resulting from violations of orders, 8
emergency response orders and referred 6 cases to the Justice
Department for civil action. By way of comparison, in the same
year EPA referred 86 cases under the Clean Water Act and 139
cases under the Clean Air Act for civil actions.
Several amendments to the Act made elsewhere in the bill
will improve compliance by improving the regulatory process
itself, by increasing State and local flexibility, by providing
better public notification, and by providing financial
assistance for the construction of treatment works. In
addition, section 21 of the bill makes modest improvements in
the enforcement system, consistent with an emphasis on State,
rather than Federal, enforcement and on a compliance-oriented
enforcement policy.
Specifically, section 21 of the bill makes seven changes
to the enforcement provisions of the Act.
First, section 21(a) of the bill amends section 1414 of
the Act to clarify the scope of enforcement authority. Section
1414(a) of the Act currently provides that the Administrator
may take enforcement action against any public water system
that fails to comply either with a national primary drinking
water regulation or with an exemption or variance from such a
regulation. Section 1414(a) does not, however, expressly
provide that the Administrator may take enforcement action
against any person that fails to comply with any provision of
the Act. As a result, it is uncertain whether the Administrator
may take enforcement action for some significant violations,
such as a violation of the prohibition against the sale of
leaded water fixtures. The Administrator's authority to take
enforcement action for a violation of a requirement of an
approved State program is also not clearly stated in current
law.
The bill addresses these problems by replacing several
references to enforceable drinking water regulations with
references to an `applicable requirement.' The bill also adds a
new section 1414(i) to the Act, which defines an `applicable
requirement' as one of several specific sections of the Act:
section 1412 (primary drinking water regulations), section 1414
(public notification), section 1415 (variances), section 1416
(exemptions), section 1417 (lead fixtures), section 1441
(chemical supplies), and section 1445 (records and
inspections). New section 1414(i) also defines an applicable
requirement as a regulation promulgated pursuant to one of
those sections, a schedule or requirement imposed pursuant to
one of those sections, or a requirement of, or a permit issued
under, an approved State program.
Second, section 21(a)(1)(B) of the bill amends section
1414(b) of the Act to improve enforcement in nonprimacy states.
Under current law, when the Administrator takes enforcement
action in a nonprimacy State, the Administrator is not required
to notify local officials of the action. As a result,
governmental officials such as mayors or county commissioners
with authority over a public water system may not know of an
EPA enforcement action until after it has been taken. The bill
rewrites section 1414(b), making one significant substantive
change (in addition to the reference to applicable
requirements, described above)--requiring that, before taking
enforcement action, the Administrator must ``notify an
appropriate local elected official, if any, with jurisdiction
over the public water system of the action taken.''
Third, section 21(a)(3)(B) of the bill amends section
1414(g) of the Act to promote the administrative resolution of
disputes in cases in which administrative resolution is
appropriate and efficient. If, under current law, the
Administrator wishes to assess a penalty of more than $5,000,
the Administrator must ask the Justice Department to bring a
complaint in Federal District Court, which is a relatively
complex process. As a result, it sometimes is difficult and
expensive to resolve simple cases.
To facilitate more appropriate enforcement in such cases,
the bill streamlines the process for taking administrative
enforcement action. Under current law, the Administrator must
take five separate steps before imposing an administrative
penalty for a violation of the Act. First, the Administrator
must notify the State and give the State an opportunity to act.
Second, the Administrator must issue a proposed order. Third,
the Administrator must hold a hearing on the proposed order.
Fourth, the Administrator must issue a final order. Fifth, if
the Administrator determines that the final order has been
violated, the Administrator must bring an administrative action
seeking to impose an administrative penalty.
To simplify this cumbersome process, the bill eliminates
the requirement that the Administrator issue a proposed order,
and hold a public hearing, before issuing a final compliance
order. As a result, the Administrator may, after notifying the
State and giving the State an opportunity to act, issue a
compliance order. This process, which is similar to the process
that occurs under section 309(g) of the Clean Water Act, will
expedite administrative proceedings, while fully preserving the
role of the States and the rights of public water systems.
Fourth, section 21(a)(3)(C) of the bill further promotes
the administrative resolution of disputes by amending section
1414(g) of the Act to increase the penalty amount that may be
assessed in an administrative proceeding. Under current law,
the Administrator may not assess a penalty of more than $5,000
in an administrative proceeding; if the Administrator wishes to
assess a higher penalty, the Administrator must ask the Justice
Department to file a complaint in Federal court. In contrast,
under the Clean Water Act, the Administrator may assess a
penalty of up to $100,000 in an administrative proceeding.
The bill provides for an expedited process for assessing
small administrative penalties (that is, those up to $5,000).
This is designed to make the process more efficient, while
still according individuals a right to a hearing. If the
Administrator seeks a penalty of no more than $5,000, EPA may
assess that penalty through an informal process--that is, after
notice and an opportunity for a public hearing, but without a
full hearing on the record under the terms of the
Administrative Procedures Act (unless the person against whom
the penalty is sought requests a hearing on the record rather
than an informal process). If the Administrator seeks a penalty
of between $5,000 and $25,000, EPA must offer a formal
process--that is, with a full hearing on the record under the
terms of the Administrative Procedures Act.
Fifth, section 21(a)(4) of the bill adds a new section
1414(h) to the Act to create an incentive for system
consolidation. Many public water systems do not have the
technical, financial or managerial capacity to comply with the
requirements of the Safe Drinking Water Act. Quite often,
consolidation with a neighboring system or systems is the most
effective means to improve system operations and the safety of
the supply. Under current law, a public water system that is in
a position to acquire or consolidate with another system could
be discouraged from doing so if there is a risk that the
acquiring system will be subject to enforcement actions based
on violations previously committed by the system that is
acquired. To encourage consolidations that resolve compliance
problems and improve safety, new section 1414(j) authorizes the
Administrator or a State to review consolidation plans. If a
plan is approved, neither the Administrator nor a State may
bring an enforcement action for a period of 2 years for a
violation that is specifically identified in the plan and that
will be resolved when the consolidation is complete. Systems
acquiring or consolidating with others will have a reasonable
period to correct pre-existing violations before being exposed
to enforcement actions.
Sixth, section 21(b) of the bill amends section 1413(a)
of the Act to require States to establish their own
administrative enforcement systems, if they have not already
done so. The administrative resolution of disputes arising
under the Act is likely to benefit both public water systems
and the public generally. The use of administrative enforcement
authority, rather than litigation, makes it simpler and less
expensive to resolve certain types of cases. In light of this,
many States have enacted administrative enforcement systems of
their own for resolving relatively minor enforcement cases.
The bill builds on these State efforts by requiring each
State with primary enforcement authority to adopt authority for
administrative penalties (unless the State's constitution
prohibits it from doing so). The authority must include, in the
case of large systems, penalties in a maximum amount of at
least $1,000 for each day of each violation, and, in the case
of small systems, in an amount that is adequate to ensure
compliance. In addition, the bill expressly provides that a
State may establish an overall limit on the amount of the
penalty that may be imposed on a public water system for a
particular violation.
Seventh, section 21(c) of the bill amends section 1448(a)
of the Act to clarify procedures for judicial review of certain
administrative actions. Under current law, a person may
petition for judicial review of any ``action'' by the
Administrator under the Act. This creates the possibility that
a person may petition for judicial review of interim actions,
such as the issuance of a proposed penalty (as opposed to a
final penalty). To prevent this, the bill clarifies that
judicial review is limited to final actions by the
Administrator. In addition, the bill describes the procedure a
petitioner should follow to seek judicial review of a final
penalty assessment, and the standard of review that applies.
section 22. federal agencies
Summary
Many public water systems are owned and operated by
Federal agencies at military bases, national parks and other
facilities. Section 1447 of current law was enacted to waive
the sovereign immunity of the Federal Government with respect
to all drinking water laws and regulations and to authorize
enforcement for violations at public water systems operated by
Federal agencies in the same manner that enforcement actions
can be taken with respect to other systems. However, recent
court decisions reviewing similar provisions of other laws call
into question the efficacy of section 1447.
Section 22 of the bill amends current law to clarify the
waiver of sovereign immunity that would otherwise apply to
Federal agencies ensuring that all Federally-operated public
water systems are subject to the provisions of the Safe
Drinking Water Act and State and local safe drinking water
laws. The bill also establishes procedures for the
Administrator to impose administrative penalties for violations
at Federal facilities and for the payment of those penalties.
Discussion
The Federal Government owns or operates more than 5,000
public drinking water systems, at military bases, national
parks, and other Federal facilities. Currently, the application
of the Safe Drinking Water Act and of State and local safe
drinking water laws to these Federally-operated systems is
uncertain. Under the general doctrine of sovereign immunity,
the Federal Government is subject to liability only if it has
expressly agreed to be subject to such liability and,
accordingly, has specifically waived its sovereign immunity.
Section 1447 of the Safe Drinking Water Act was intended to be
an explicit waiver of immunity and provides that each Federal
agency that operates a public drinking water system ``shall be
subject to, and comply with, all Federal, State, and local
requirements, administrative authorities, and process and
sanctions respecting the provision of safe drinking water.''
However, this provision may have limited effect. In 1992,
in the case of Department of Energy v. Ohio (503 U.S. 607), the
Supreme Court held that similar provisions of the Clean Water
Act and the Resource Conservation and Recovery Act did not
fully waive the sovereign immunity of a Federal agency with
respect to fines that punish past violations of the law (as
opposed to coercive sanctions intended to induce future
compliance with the law). The waiver of sovereign immunity
contained in section 1447 is similar to the waivers that the
Supreme Court considered in Department of Energy v. Ohio;
therefore, the waiver in section 1447 might be construed
similarly, as not waiving sovereign immunity with respect to
penalties for past violations.
Such a construction of the section 1447 would prevent
State and local officials from taking enforcement actions that
they consider necessary to protect their citizens and would
prevent the Administrator from taking actions necessary to
protect public health. It would also reduce incentives for
Federal agencies to comply. And it would generally undermine
public confidence in the even-handed enforcement of the law.
Therefore, the bill amends section 1447 to clarify the waiver
of sovereign immunity for all enforcement actions under the
Safe Drinking Water Act and similar State and local laws. These
amendments generally follow the provisions of the Federal
Facilities Compliance Act (P.L. 102-386) that clarifies the
waiver of sovereign immunity under the Resource Conservation
and Recovery Act.
Section 22(a) of the bill rewrites section 1447(a) of the
Act establishing the duty of Federal agencies to comply with
safe drinking water laws (including laws relating to
underground injection). The revision specifically provides that
this duty includes complying with all civil or administrative
penalties and fines, whether the penalties or fines are
punitive or coercive, and waives sovereign immunity with
respect to such compliance. It also provides, like the Federal
Facilities Compliance Act, that Federal agents, employees, and
officers are not subject to personal civil liability for any
acts or omissions within the scope of their duties, but may be
subject to criminal sanctions under State or local safe
drinking water laws.
Section 22(a) of the bill also rewrites section 1447(b)
of the Act providing for an exemption, in certain
circumstances, from the otherwise applicable duty to comply.
Under current law, such an exemption must be granted by the
Administrator if the exemption is requested by the Secretary of
Defense and is necessary for national security. New section
1447(b) revises current law in five ways, along the lines of
the Federal Facilities Compliance Act. First, it provides the
exemption authority to the President rather than the
Administrator. Second, it permits an exemption to apply to any
Federal agency, not only the Department of Defense. Third, it
changes the standard for granting an exemption from a national
security interest to ``the paramount interest of the United
States.'' The need for an exemption may not be based on the
lack of an appropriation, unless the President has specifically
requested the appropriation and Congress has not made it.
Fourth, it limits the period of the exemption to one year. The
President may grant additional exemptions. Fifth, it requires
the President to issue an annual report on any exemptions.
Section 22(b) of the bill adds a new section 1447(d) to
the Act authorizing the Administrator to assess administrative
penalties against Federal agencies for violations of the Safe
Drinking Water Act and establishing procedures for the
assessment of such penalties. Under the theory of the unified
executive, the Justice Department has declined to initiate
court litigation against other Federal agencies. Administrative
proceedings offer an alternative means for EPA to enforce the
provisions of the Safe Drinking Water Act with respect to
Federal agencies. New section 1447(d) authorizes the
Administrator to initiate such proceedings and to assess
administrative penalties of up to $25,000 for each day that
each violation occurs. It also directs the Administrator to
provide an agency an opportunity to confer and with notice and
an opportunity to be heard before an administrative penalty
order becomes final. To assure that the public can participate
in these deliberations, the amendments permit any interested
person to obtain judicial review of an administrative penalty
order assessed against a Federal agency.
As a related matter, section 22(c) amends the citizen
suit provision of the Act to permit citizens to bring a suit
against an agency that has failed, for more than a year, to pay
an administrative penalty assessed under section 1447. The
penalties are paid by the agency to the general fund of the
Federal Government and not to EPA or to a citizen bringing a
successful suit.
Section 22(d) of the bill addresses the special
circumstances of the Washington Aqueduct. An important purpose
of section 21 of the bill is to give Federal agencies a
stronger financial incentive to comply with the Safe Drinking
Water Act. This purpose would be frustrated if a Federal agency
could pass a penalty through to consumers served by the water
systems it operates. This is a particular concern in the case
of the Washington Aqueduct operated by the Army Corps of
Engineers and serving people in the District of Columbia and
parts of Northern Virginia. It would be inappropriate for a
penalty assessed against the Corps to be passed on in any way
to the residents who have no responsibility for the violation
and no authority over the drinking water treatment system
operated by the Corps. Therefore, section 22(d) of the bill
amends section 1447 of the Act to specifically prohibit the
Corps of Engineers from passing any penalty through to the
users of the Washington Aqueduct system. Instead, any such
penalty should be incurred exclusively by the Corps of
Engineers.
section 23. research
Summary
The general research authorities of current law are
clarified and an authorization of $25 million is provided for
each fiscal year through 2003. From this amount, $4 million is
available for research on the health effects of arsenic. In
addition, $8 million per year is authorized for the
Administrator to make grants to States to assist in responding
to drinking water emergencies and $10 million per year is
authorized to educate and train personnel needed to manage and
operate drinking water systems.
The bill includes new research programs for the
interactive risks of pathogenic organisms and disinfectants and
disinfection byproducts and for risks to subpopulations that
may experience greater risks of adverse health effects from
exposure to particular contaminants than the general
population.
Discussion
Section 1442(a) of the Act authorizes the Administrator
to conduct research, studies and demonstrations relating to the
causes, diagnosis, treatment control, and prevention of
diseases resulting from contaminants in drinking water. The
bill adds authority to collect and make available information
on the dependability of a safe drinking water supply and to
make available research facilities of the Agency to public
authorities, institutions and individuals engaged in research.
The authorization of $25 million per year for this subsection
is extended through the year 2003.
Under current law, EPA has authority to make grants to
States to assist in emergency situations relating to water
systems. This provision is retained and the authorization of $8
million per year is extended through the year 2003.
A report to Congress on the long-term availability of
drinking water supply, submitted in 1988, is to be revised 2
years after the date of enactment of the bill and every 5 years
thereafter.
Various authorities relating to education and training
are consolidated and a new authority to develop methods for
forecasting supply and demand for occupational categories for
the protection and treatment of drinking water is added. Also,
an new authorization of $10 million per year is included to
support these activities.
A new section 1442(i) is added to the Act directing EPA
to conduct studies to reduce the uncertainties with respect to
the substances present in drinking water and the type and
magnitude of the associated adverse effects. Emphasis is placed
on developing biologically-based risk assessment models that
incorporate mechanistic data to the extent that they become
available and relevant and examining noncancer endpoints and
infectious disease, and susceptible individuals and
subpopulations.
A new section 1442(j) directs EPA to establish long-term
priorities for research and an integrated risk characterization
strategy to identify unmet needs, priorities for study and
needed improvements in science. With the increasing desire for
peer-reviewed sound science, the Administrator should publish a
strategy setting out the research priorities of the Agency. The
initial strategy shall be made available not later than 3 years
after the date of enactment of the bill.
In addition to improving the understanding of chemical
risks, there is a need to better understand waterborne
microbial risks. Pathogenic and toxigenic microbiological
agents in drinking water have long been known to cause disease
and death in consumers. The introduction of water chlorination
and the subsequent decline in the incidence of waterborne
diseases such as cholera, typhoid fever, and gastroenteritis is
one of the foremost public health achievements of the 20th
century. However, waterborne diseases are now known to be
caused by a much broader variety of organisms than previously
thought. Some of the recently discovered waterborne diseases
include fatal pneumonia caused by Legionella pneumophila;
hepatitis caused by hepatitis virus types A and E;
cardiomyopathies caused by coxsackie virus; incurable
gastroenteritis caused by Cryptosporidium parvum in AIDS
patients; and neurotoxicity caused by blue-green algae.
To evaluate the health risks of microbes in drinking
water, section 1442(k) added by the bill requires the
Administrator to develop a research plan to support
promulgation of the Enhanced Surface Water Treatment Rule,
including Cryptosporidium, the rules for disinfectants and
disinfection byproducts, and the ground water disinfection
rule. $12.5 million is authorized for each of fiscal years 1997
through 2003 to carry out this research plan.
A new section 1442(l) is added to the Act directing the
Administrator to carry out a continuing research program to
identify groups within the general population that may be at
greater risk of adverse health effects from exposure to
contaminants in drinking water. Within 1 year of the date of
enactment, the Administrator shall develop and implement a
research plan to integrate the research into the regulatory
process and to identify the risks and the groups that are at
greater risk from the contaminants in drinking water. The
Administrator is to report to Congress on the results of the
research not later than 4 years after the date of enactment.
section 24. definitions
Summary
Under current law, the term `public water system' is
defined to include only those water supply systems that deliver
water for human consumption through a pipe or pipes. Other
systems that may deliver water to a home or other location for
drinking, cooking and bathing by a ditch or a canal (typically
the water is being transported for irrigation, but may have
incidental use for residential water supply) are not considered
public water systems. The bill modifies the definition of
`public water system' to include some systems that provide
water for residential and similar uses by means other than a
piped system.
Modifications to the definition of `primary drinking
water regulation' are also made by the bill. The changes
provide that: (1) only accepted methods for quality control and
testing may be imposed by a national primary drinking water
regulation; and (2) that the Administrator may issue guidance
after a regulation has been promulgated to allow the use of
other methods to comply with the monitoring requirements in a
regulation.
The bill also adds definitions for `community water
system' and `noncommunity water system' and modifies the
definitions of `State' and `Indian tribes' for purposes of the
new State revolving loan fund grant program authorized by part
G.
Discussion
Current law defines a `public water system' to include
only those water supply systems ``for the provision to the
public of piped water for human consumption.'' In December,
1992, the Environmental Protection Agency issued an
administrative order to an irrigation district delivering water
to residential users through canals requiring it to comply with
the maximum contaminant levels and monitoring requirements of
the Safe Drinking Water Act. EPA issued the order following an
investigation that led the Agency to believe that the sale of
untreated canal water to 5,700 residential users could lead to
the ingestion of contaminants and constituted a risk to public
health. Although most residential consumers served by this
system treated the water before using it, or obtained bottled
or trucked water for drinking and cooking, EPA stated that
there was reason to believe that some users were ingesting the
canal water without treatment.
The irrigation district sought review of the order under
the judicial review provisions of the Act. In an opinion issued
on September 7, 1993, Imperial Irrigation District v. U.S.
E.P.A., 4 F.3d 774 (9th Cir. 1993), the United States Court of
Appeals for the Ninth Circuit held that the Imperial Irrigation
District is not a public water system within the meaning of the
Safe Drinking Water Act because it does not constitute a system
of ``piped water'' for human consumption. The bill modifies the
definition of ``public water system'' in the Act to assure that
systems such as the Imperial Irrigation District delivering
water for human consumption by constructed conveyances
(ditches, canals, culverts, etc.; but not including bottled or
trucked water) in addition to piped systems are subject to the
requirements of the Act as public water systems.
The definition of public water system is modified by
expanding the reference to delivery systems to include ``pipes
or other constructed conveyances''. The term ``constructed
conveyances'' refers to transport systems such as ditches,
canals, culverts, waterways and similar delivery systems that
are manmade and that transport large quantities of water in a
utility network. The term does not include water delivered by
bottle or in other package units, by vending machines or
coolers and does not include water that is trucked or delivered
by a similar vehicle.
Under current law, water delivery systems are not public
water systems if they serve less than 15 connections and less
than 25 persons. The definition of public water system is
further modified in the bill to exclude from consideration
certain connections that might otherwise qualify a system as a
public water system. These exclusions only apply (with an
exception noted below) where the water is delivered by a
constructed conveyance other than a pipe. The first exclusion
is for connections where the water delivered by the system is
not used for drinking or cooking for residential or similar
uses. In this case, water is provided by the system for these
uses from another source such as bottled water or trucked
water. The alternative source of water for these uses must be
provided (not merely be available) and must meet a level of
health protection equivalent to the applicable national primary
drinking water regulation.
The second exclusion applies where the water is used for
drinking and cooking, but the water is treated prior to use. In
this instance, the water may be treated centrally or at the
point-of-entry to a residence or other facility where similar
uses occur by the water system, by a pass-through entity or by
the consumer. As a general principle, the Safe Drinking Water
Act does not allow a public water system to place the burden of
compliance on the consumer. However, in many rural areas, a
water system that is constructed principally for irrigation or
other agricultural and industrial uses may not desire to be
regulated as a public water system and would decline to provide
water to residential users, if the system were required to
provide the treatment. Therefore, in this second case the
obligation to treat the water to a level of public health
protection equivalent to the applicable national primary
drinking water regulation may appropriately be assumed by the
consumer to assure that people living in rural areas are not
precluded from obtaining the best quality water at an
affordable cost.
Generally, the bill excludes these two types of
connections from consideration only where the connection is to
a water system that conveys water by means other than pipes.
Piped water systems may not avoid regulation as public water
systems by providing bottled water or treating at the point of
entry. However, an exception is made for some piped water
delivery systems that were in operation prior to May 18, 1994,
and that were constructed principally for the purpose of
agricultural service with only incidental use for human
consumption. These piped systems are not to be considered
public water systems if all of the connections to the system
comply with the requirements applicable under one or the other
of the exclusions for alternative water or point-of-entry
treatment noted above.
The bill includes new definitions for `community water
system' and `noncommunity water system'. Community water
systems include those systems that are connected to 15 year-
round residences or serve 25 persons in a residential setting
on a year-round basis. Noncommunity water systems are all other
public water systems that are not community water systems. This
distinction has significance in several cases under the statute
and the regulations issued by EPA. For instance, all community
water systems, whether owned by a public or by a private
entity, are eligible for assistance under the new SRF grant
program. However, only some noncommunity systems are eligible
(those that are owned by a public entity or a nonprofit
organization). There are approximately 57,000 community water
systems and 128,000 noncommunity water systems in the United
States.
Under current law, the term State includes all of the 50
States, territories and the District of Columbia. For purposes
of the allocation formula under the new SRF program, the term
`State' is limited by the bill to the 50 States and the
Commonwealth of Puerto Rico. The District of Columbia and the
territories also receive funds under the SRF program, but the
funds are allocated through a set aside rather than
proportionately based on formula factors.
Also for the purposes of the new SRF program, the
definition of `Indian Tribe' under the Act is expanded to
include any Native Village as defined in the Alaska Native
Claims Settlement Act. This provision allows Alaska Native
Villages to qualify for funds that are set aside for Indian
Tribes under the new SRF program.
The bill makes two changes to the definition of `primary
drinking water regulation.' Provisions in this definition
authorize the Administrator to impose quality control and
testing requirements as part of a national primary drinking
water regulation. This authority, in addition to the provisions
of section 1445, is the basis for monitoring requirements for
contaminants regulated under the Act. The first change requires
that the quality control and testing methods imposed be
accepted methods. Generally, any process to develop a method
that includes public review and response to comments in the
development of a method qualifies the method as an accepted
method. These procedures may include an EPA notice and comment
rulemaking but may also include peer-review procedures in the
scientific community or a consensus process conducted by a
private organization that establishes technical and engineering
standards.
Second, the bill authorizes EPA to issue guidance adding
alternative quality control and testing methods to the list of
methods that may be used to comply with a national primary
drinking water regulation after the regulation has been
promulgated. Current law could be read to require a formal
rulemaking to revise the national primary drinking water
regulation in order to allow the use of alternative methods
that are developed after a regulation has been promulgated. The
bill reduces the procedural burden by allowing the
Administrator to add other methods by guidance, on the
condition that the methods are accepted methods pursuant to
some other review procedure.
section 25. ground water protection
Summary
The Administrator is authorized to make grants to the
States to support up to 50 percent of the cost of general
ground water protection programs. The bill authorizes $20
million per year through 2003 for this new grant program.
Grants to support State administration of the Underground
Injection Control (UIC) program under part C of current law are
reauthorized through the year 2003 at $20.85 million per year.
No other amendments to the UIC program are made by the bill.
Grants to support the wellhead protection program
established by section 1428 are reauthorized through the year
2003 at $35 million per year.
Grants to support the critical aquifer protection program
under section 1427 are reauthorized at $20 million per year
through 2003. In addition, section 1427 is amended to reopen
the grant application period.
The Administrator is to conduct a study of the extent and
seriousness of contamination of private sources of drinking
water not regulated under this Act and, within 3 years of the
date of enactment, provide a report to the Congress describing
the findings of the study and recommendations for actions
needed to protect public health.
A requirement in section 1450 of current law for an
annual report to the Congress on the activities of the
Administrator to carry out the Safe Drinking Water Act is
deleted.
Discussion
Thirty-eight percent of the community water systems in
the nation rely on ground water sources. Ground water is the
source of supply for 83 percent of the systems serving
populations of 10,000 or less. And 95 percent of Americans
living in unincorporated areas rely on ground water (including
ground water drawn from private wells) for their drinking water
supply.
Prevention of ground water contamination is the most cost
effective means of ensuring ample supplies of safe drinking
water for the future. The importance of ground water protection
has always been reflected in the provisions of the Safe
Drinking Water Act through such initiatives as the wellhead
protection program, control of underground injection, and the
designation of sole source aquifer areas.
The bill provides an additional tool to protect ground
water by authorizing a new State grant program to encourage
States to develop coordinated, comprehensive ground water
protection programs. Section 25(a) of the bill authorizes $20
million annually for fiscal years 1995 through 2003 for these
grants.
Since 1993, EPA has been encouraging States and Indian
Tribes to develop Comprehensive State Ground Water Protection
Programs (CSGWPPs). This voluntary effort is intended to
prevent ground water contamination through better coordination
of various Federal programs under the Safe Drinking Water Act,
the Clean Water Act, the Resource Conservation and Recovery Act
and the Federal Insecticide, Fungicide and Rodenticide Act.
Eighteen States are implementing voluntary CSGWPPs in
cooperation with EPA based on guidance issued in 1993. Five
States (Alabama, Connecticut, New Hampshire, Wisconsin, and
Massachusetts) have programs that have been endorsed by EPA.
The other 13 States are in the process of submitting programs
to EPA or participating with EPA in cross-program endorsements.
The new ground water grant program may be used to support
States implementing the CSGWPPs and will provide a financial
incentive for other States to join the program. EPA's efforts
along these lines provide flexibility in program regulations
and guidance and promote specific projects that cross the lines
of environmental statutes to prevent the pollution of ground
water. The grant funds may also be used to support other ground
water protection efforts of the States.
This comprehensive approach to ground water protection
was endorsed in a December, 1994, recommendation of the
National Drinking Water Advisory Council:
``The Council commends EPA on its progress
implementing the Comprehensive State Ground Water
Protection Program and recommends that EPA continue
promoting CSGWPP as an innovative cross program model
and the Council recommends that EPA encourage States
and Tribes to identify Wellhead Protection (WHP) areas
as part of their Comprehensive State Ground Water
Protection Programs.''
The bill includes a minimum number of administrative
provisions for the new grant program. Within 1 year of
enactment, EPA is to establish application procedures and
publish guidance on the key elements of a State ground water
protection program. Grants are to be awarded according to the
extent of the ground water resources in each State and the
likelihood that the grant will result in sustained and reliable
protection of ground water resources. Innovative programs
proposed by the States to prevent ground water contamination
may also receive grants. However, no grant may be awarded for
projects to remediate ground water contamination. Grant awards
must be coordinated with grants made under section 319(i) of
the Clean Water Act and any other Federal grants related to
ground water protection. States are required to provide a 50
percent match for the costs of the program. EPA is to report to
Congress every 3 years on the effectiveness of State programs
funded under this new authority.
Part C of the Safe Drinking Water Act includes the
Underground Injection Control (UIC) program that is intended to
prevent contamination of underground sources of drinking water
(aquifers with sufficient water of a quality adequate for human
consumption) from injection wells used to dispose of hazardous
and other industrial wastes and brines and oily waters for oil
and gas exploration and production. EPA and the States (which
have primary responsibility for most wells) regulate 300,000
injection wells through permits and regulations under this
program. Recent emphasis in the program has been on shallow
wells used for nonhazardous wastes that may present a threat in
wellhead protection areas of public water systems relying on
ground water. In recent years, grants have been made to
approximately 40 States and territories under this authority.
The bill authorizes $20.85 million per year through the year
2003 for grants to States to carry out activities under the UIC
program.
The Safe Drinking Water Act contains two other
significant programs, added by the 1986 Amendments, to protect
ground water resources from contamination. Under the Section
1424(e) of the Act, local governments or other organizations
may seek designation of an aquifer supplying the community's
drinking water needs as a sole source aquifer. Along with the
designation, the local government may develop a plan to protect
the aquifer from contamination. Federal actions that may
contaminate a sole source aquifer are to be conducted in a
manner that is consistent with the local plan. 65 aquifers
across the country have been designated as sole source aquifers
pursuant to this authority.
Section 1427 of the Act authorizes grants to local
governments and other organizations to develop and implement
plans to protect the ``critical aquifer protection areas'' that
serve to recharge aquifers that have been designated as sole
source aquifers. Although Congress has never appropriated funds
pursuant to this authorization, the bill extends authorizations
for this program at $20 million per year through the year 2003.
The bill deletes a provision in section 1427(b) of current law
that requires applications for grants to be submitted within 24
months of enactment of the 1986 Amendments. The effect of this
deletion is to reopen the grant program for applications in the
event that Congress makes appropriations for this purpose.
A second ground water protection program added by the
1986 Amendments has proved more successful, although it has not
been supported by Federal appropriations. Section 1428 of the
Act directs the States to develop wellhead protection programs.
A wellhead area is the land area around a drinking water well
where the release of a potential contaminant through an
activity on the surface will lead to contamination of the
ground water drawn to the well. The purpose of the wellhead
protection program is to encourage the delineation of wellhead
areas and surveys of the activities within wellhead areas to
determine whether the water supply is vulnerable to
contamination.
Despite limited Federal financial support, 26 States have
EPA-approved wellhead protection programs. In addition, the
National Rural Water Association has encouraged more than 400
local governments to adopt ordinances to protect the wellhead
areas around their municipal supplies. The bill reauthorizes
grants for States that have wellhead protection programs at $35
million per year through fiscal year 2003.
Section 1450(h) of current law requires the Administrator
of the Environmental Protection Agency to file an annual report
with the Congress on activities conducted to carry out the Act.
The report is also to include an estimate of the compliance
costs imposed on State and local governments. EPA has not filed
this report since the mid-1980s. The bill (section 25(e))
repeals this annual reporting requirement by replacing the
current section 1450(h) with a new provision requiring a one-
time report on the health risks posed by private drinking water
supplies.
The Safe Drinking Water Act only applies to public water
systems--those systems serving more than 15 service connections
or regularly serving more than 25 people. Other drinking water
supplies, including private wells serving only one or a few
households, are not protected by Federal health standards or
the monitoring and testing that occurs under the Act. Americans
relying on these supplies also do not benefit from the
technical and financial assistance that is available to public
water systems under the Safe Drinking Water Act.
The bill (section 25(e)) requires EPA to conduct a study
of the contamination of private drinking water supplies that
are not regulated under the Safe Drinking Water Act and to
report to Congress on the findings of the study within 3 years.
EPA is required to consult with scientists, including
hydrogeologists, and well contractors and suppliers in carrying
out this private water supply study.
section 26. lead plumbing and pipes; return flows
Summary
Section 1417 of the Act is amended to ban the use of
plumbing fittings and plumbing fixtures that exceed lead
leaching rates established by the National Sanitation
Foundation (or other third party certifier) in public water
systems or residential plumbing that provides water for human
consumption. The bill also bans the sale (introduction into
commerce) of lead pipe, plumbing fittings and plumbing fixtures
effective 2 years after the date of enactment. The use and sale
of leaded solder and flux is prohibited unless the solder or
flux is clearly labeled to prevent use in plumbing delivering
water for human consumption.
Section 3013 of the Energy Policy Act of 1992 (P.L. 102-
486), encouraging the use of geothermal heat pumps that draw
water from and return water to the distribution lines of public
water systems, is repealed.
Discussion
Section 1417 and part F of current law address the
problem of lead contamination of drinking water that is caused
by materials used in public water distribution systems,
plumbing of private residences and water coolers used at
schools and businesses. Lead causes adverse developmental
effects in children (slows cognitive development) and
hypertension in adults. It is also a probable (Group B) human
carcinogen. The principal source of lead in drinking water is
the plumbing (service lines, pipes, fittings and coolers) that
carry and store water between the water main and the tap. Lead
and brass (which contains lead) have in the past been preferred
materials for use in plumbing systems because they are not
prone to brittleness and catastrophic failure.
The bill expands the reach of the current provisions of
the Act to cover the use of leaded plumbing fittings and
fixtures (faucets) and the sale of leaded solder and flux.
The National Sanitation Foundation (NSF) is a private
organization that develops consensus technical and engineering
standards for use in a variety of fields including drinking
water treatment, distribution and supply. NSF has developed and
implemented a consensus standard (under NSF-61, Drinking Water
Systems Components Health Effects) to reduce lead leaching
rates from plumbing fittings and fixtures including faucets.
Negotiations to produce this standard involved the plumbing
industry, EPA, numerous State and local regulatory officials,
water utilities, independent health consultants, and the
academic community.
The negotiations achieved agreement among all of these
participants on a health-effects-based performance standard
limiting the lead leaching rate from plumbing fittings and
fixtures. The standard, issued in September of 1994, has been
approved by the American National Standards Institute. The
standard will allow public water systems to provide drinking
water with lead levels below the EPA action level of 15 parts
per billion, if the source water and distribution system are
relatively free of lead (contribute less than 4 parts per
billion to the total). The first list of products in compliance
with the standard was issued in the Fall of 1995.
Current law already bans the use of pipe, solder or flux
that is not lead free in public water systems and residential
plumbing intended to provide water for human consumption. The
bill adds a ban on the use of lead plumbing fittings and
fixtures and defines `lead free' in this instance to mean
fittings that do not meet a consensus standard (the NSF
standard) that is established within 1 year of enactment.
The bill directs EPA to provide accurate and timely
technical information and assistance to qualified third party
certifiers (such as NSF) for the development of voluntary
industry standards for the leaching of lead from plumbing
fittings and fixtures that are intended to dispense water for
human ingestion. If a voluntary standard is not established by
a qualified third party certifier within 1 year after
enactment, EPA is required to establish a standard for the
leaching of lead within 2 years after the date of enactment.
The regulation is to be effective within 5 years after it is
issued. The section prohibits the import, manufacture,
processing or distribution of a fitting containing more than 4
percent lead by dry weight if regulations are required, but not
issued, within 5 years after the date of enactment. Because NSF
has already issued a standard, the provisions of the bill with
respect to EPA regulation of plumbing fittings and fixtures
will not be triggered.
The bill makes clear that the ban on lead pipe does not
apply to pipe used in manufacturing or industrial processes.
The bill also amends current law to prohibit the sale of solder
or flux containing lead at businesses selling plumbing supplies
or the introduction into commerce of any leaded solder or flux,
unless the solder or flux is labeled to prohibit use in
plumbing providing water for human consumption.
Section 26 of the bill also amends section 1445(a)(1) of
the Act to authorize the Administrator to collect information
from all persons subject to the requirements of the Act
including those who manufacture or sell pipes, plumbing
fittings and plumbing materials.
The Energy Policy Act of 1992 includes a provision
(section 3013) to encourage the use of geothermal heat pumps
that withdraw water from public water systems, remove heat from
the water, and then return the water to the public water
system. Representatives of public water systems communicating
to the Committee through the American Water Works Association
and the Association of Metropolitan Water Agencies are very
concerned that any widespread use of geothermal heat pumps of
this type might increase the risk of illness and disease by
introducing contaminants into drinking water supplies. The bill
repeals section 3013 of the Energy Policy Act of 1992.
section 27. bottled water
Summary
Health standards for bottled water are established by the
Food and Drug Administration under authority of the Federal
Food, Drug and Cosmetic Act (FFDCA). Although FDA is directed
by current law to set a bottled water standard for each
contaminant for which a tap water standard has been
established, FDA has been slow to act.
The bill directs the Secretary of Health and Human
Services (FDA is part of the Department of Health and Human
Services) to establish regulations for the quality of bottled
water for each contaminant for which a national primary
drinking water regulation is issued, unless the Secretary
determines that the contaminant is unlikely to be present in
bottled water. The regulations are to be issued no later than
180 days after the tap water standards (as provided in the
current FFDCA) and are to be no less stringent than the
standards that apply to tap water (drinking water supplied by
public water systems). If the Secretary fails to act within the
180-day period, the maximum contaminant levels established
under the Safe Drinking Water Act for tap water apply by
operation of law as the standards for bottled water.
For those contaminants for which EPA had issued a tap
water standard prior to enactment of the bill and FDA had not
issued a standard for bottled water, the Secretary is to issue
standards or publish a finding that standards are not necessary
within 1 year.
Discussion
There are 430 companies producing bottled water in the
United States. Annual sales of bottled water are estimated to
be $2.7 billion. This product is regulated as a food item by
the Food and Drug Administration under authority of section 410
of the Federal Food, Drug and Cosmetic Act.
Although that law requires FDA to set a standard for each
contaminant regulated under the Safe Drinking Water Act within
180 days of the date on which EPA promulgates standards for tap
water, FDA has been slow to act. FDA took 4 years to set
standards for the 8 volatile organic chemicals (including
benzene) regulated by EPA in 1989. FDA did not set standards
for the 35 contaminants covered by EPA's 1991 Phase II
rulemaking until December, 1994. Standards for bottled water
have not been issued for those contaminants regulated in the
Phase V rule for tap water, although it was promulgated by EPA
in 1992 and became effective for tap water on January 1, 1994.
One reason FDA regulations lag far behind tap water
standards is that FDA appears not to begin work on its
regulation until EPA has reached the stage of promulgating the
rule for tap water. The bill addresses this problem by
requiring consultation between EPA and FDA no later than the
date on which EPA publishes proposed standards to assure a more
timely commencement of FDA's regulatory process.
The bill also provides that the maximum contaminant level
for tap water will apply to bottled water, if FDA has not
promulgated standards within 180 days of EPA's final action. If
FDA fails to act, the maximum contaminant level becomes the
bottled water standard on a date certain.
Under provisions of current law and the bill, FDA can
publish a determination that a standard is not necessary for a
particular contaminant because the contaminant does not occur
in bottled water.
FDA standards for a contaminant in bottled water are to
be no less stringent than standards established for the
contaminant in tap water, and may be more stringent if the
Secretary determines that more stringent standards are
appropriate to protect public health. It would be appropriate
for the Secretary to use the authority to set more stringent
standards for bottled water whenever the maximum contaminant
level that applies to tap water has not been set at the same
level as the maximum contaminant level goal because of
treatment or distribution economics that are applicable to
public water systems but that are not relevant to the bottled
water industry. As an example, the national primary drinking
water regulation for lead and copper under the Safe Drinking
Water Act reflects considerations (most lead in tap water comes
from plumbing in homes) that do not apply to bottled water.
FDA's bottled water standard for lead (an absolute limit of 5
parts per billion) is appropriately more protective of public
health than the tap water regulation established by EPA (an
action level of 15 parts per billion).
FDA is also authorized to impose monitoring requirements
for bottled water that are different from those applying to tap
water under the Safe Drinking Water Act.
section 28. assessing environmental priorities, costs, and benefits
Summary
The Administrator is directed to rank sources of
pollution with respect to the relative degree of risk that they
pose to human health, the environment, and public welfare. The
Administrator also is directed to evaluate the private and
public costs associated with each source of pollution and the
costs and benefits of complying with regulations designed to
protect against the risks associated with the sources of
pollution.
Discussion
In 1993, the Office of Technology Assessment estimated
that it may cost Americans $150 billion a year to comply with
environmental regulations. While this may not be too much to
spend, it is too much to spend unwisely.
Therefore, in recent years, there has been increasing
attention given to the potential use of risk assessment and
cost-benefit analysis as tools to make environmental laws more
efficient and effective. As the Commission on Risk Assessment
and Risk Management recently wrote, ``the tools of risk
assessment and cost-benefit analysis can contribute useful
information for critical decisions affecting health, safety,
the environment, and the nation's economy.'' At the same time,
risk assessment and cost-benefit analysis remain imperfect
tools, subject to limitations and uncertainty; as a result, in
some cases the over-reliance on risk assessment and cost-
benefit analysis can, as the Commission also said, ``lead to an
excessive regulatory burdens, unreasonable costs to businesses
and taxpayers, and prolonged litigation.''
In light of both the prospects and the limitations of
risk assessment and cost-benefit analysis, the Committee has
been seeking to strike a balance, carefully incorporating risk
assessment and cost-benefit analysis into environmental laws
where appropriate. An example is section 5 of the bill, which
uses risk assessment and cost-benefit analysis in the specific
context of considering maximum contaminant levels for drinking
water.
Risk assessment and cost-benefit analysis also can be
useful in setting overall environmental priorities. For
example, a periodic ranking of the risks posed by various
sources of pollution, and of the costs and benefits of
controlling them, will lead to a better understanding of how to
improve environmental protection at a reasonable cost to
society.
Several recent reports, including EPA's Unfinished
Business: A Comparative Assessment of Environmental Problems
(1987) and the Science Advisory Board's Regulating Risk:
Setting Priorities and Strategies for Environmental Protection
(1990) have sought to rank the relative risks of various health
and environmental threats. Section 28 of the bill is designed
to build and improve on the work of these studies, by directing
the Administrator to report, every 3 years, on the relative
risks posed by various sources of pollution and on the costs
and benefits of reducing those risks.
Subsection (a) defines the following terms for purposes
of section 28: `Administrator,' `adverse effect on human
health,' `risk,' and `source of pollution.'
Subsection (b) makes several findings regarding the
usefulness, limitations, and uncertainties of risk assessment
and cost-benefit analysis, and about the need for periodic
reports on the costs and benefits of Federal environmental laws
and regulations.
Subsection (c) directs the Administrator to submit two
reports to Congress. Not later than 1 year after the date of
enactment of the bill, the Administrator must submit a
preliminary report describing the approach and methodology to
be used in ranking environmental priorities. Not later than 3
years after the date of enactment (and not later than every 3
years thereafter), the Administrator must submit a final
report, which has two main components. One is a ranking of
sources of pollution, with respect to the relative degree of
risk that each source poses to human health, the environment,
and public welfare. The second is an evaluation of the costs
and benefits of complying with regulations designed to protect
against those risks.
The bill gives the Administrator broad discretion to
select the sources of pollution to evaluate and rank and the
methods to rank them. But, to assure that rankings and
evaluations are based on the best possible information, the
bill provides specific requirements with respect to the
consideration of uncertainties, costs, and benefits.
With respect to uncertainties, the Administrator is
required to define the major uncertainties encountered in the
evaluations and rankings, to explain how they affect the
analyses, and to identify research that will reduce the
uncertainties.
With respect to costs, the Administrator is required to
consider the public as well as private costs of complying with
environmental laws.
With respect to benefits, to assure that any risk
rankings and cost-benefit analyses properly reflect the full
range of potential benefits, the bill requires the
Administrator to consider and, to the extent practicable,
estimate a broad range of benefits, specifically including the
benefits of avoiding premature mortality, avoiding cancer and
noncancer diseases that reduce the quality of life, preserving
biological diversity and the sustainability of ecological
resources, maintaining an aesthetically pleasing environment,
valuing services performed by ecosystems that, if lost or
degraded, would have to be replaced by technology, and avoiding
other risks identified by the Administrator. Moreover, to
assure that nonquantifiable benefits are fully taken into
consideration, the bill expressly requires the Administrator to
identify benefits that cannot be described in monetary terms.
In addition, the bill requires the Administrator, in
evaluating costs and benefits, to specifically consider the
following: the costs and benefits of certain Federal actions;
opportunities to achieve risk reductions by modifying Federal
regulations or taking other Federal Actions; and choices
between competing risks.
Subsection (d) provides for the implementation of the
section. It requires the Administrator to consult with various
agencies, groups, and individuals in the development of the
report. It requires the Administrator to make public the
information upon which the rankings and evaluations are made.
It requires the Administrator to establish methods for
determining costs and benefits. And it requires the Science
Advisory Board to review the report before it is submitted to
Congress.
section 29. other amendments
Summary
The Chief of the Army Corps of Engineers is authorized to
borrow the funds necessary to modernize the Washington Aqueduct
that provides drinking water to the District of Columbia and
several Virginia cities and counties.
Membership on the National Drinking Water Advisory
Council is modified to require that 2 members represent small,
rural water systems.
The bill provides that title XIV of the Public Health
Service Act may be cited as the Safe Drinking Water Act.
The bill contains technical amendments to conform section
headings throughout the Act.
Discussion
The Army Corps of Engineers is authorized to borrow from
the Secretary of the Treasury amounts necessary to finance
capital improvements at the Washington Aqueduct. Amounts
borrowed from the Bank are to be repaid by the customers of the
Washington Aqueduct.
The Washington Aqueduct system consists of the Dalecarlia
and McMillan water treatment plants located in Washington, DC.
The system was constructed in 1853 and is under the control of
the U.S. Army Corps of Engineers for appropriate management and
maintenance. The system distributes approximately 250 million
gallons of water per day to the over one million customers in
the metropolitan Washington area.
Fees are collected from the water system customers and
are deposited into the District of Columbia Water and Sewer
Enterprise Fund. This Fund provides the revenue to finance the
system's annual operating expenses. The Corps of Engineers, as
owner of the system, has no authority to finance capital
improvement projects necessary to meet Federal drinking water
standards.
The bill authorizes the Corps of Engineers to borrow
funds from the Secretary of the Treasury to underwrite the cost
of necessary improvements to the Washington Aqueduct. Amounts
borrowed from the bank are to be repaid by the customers of the
Washington Aqueduct. The Corps has indicated that the most
probable total cost of projects to modernize the Washington
Aqueduct is $280 million.
Section 1446 of current law establishes the National
Drinking Water Advisory Council. This group of individuals
knowledgeable on public health and drinking water supply issues
meets regularly to advise the Administrator of EPA with respect
to her duties under the Act. The Council currently has 15
members--5 from the general public, 5 from State and local
government agencies, and 5 from organizations with an active
interest in the fields of water hygiene and public water
supply. The bill provides that 2 of the members appointed from
this latter group of 5 shall represent small, rural drinking
water systems.
Public Law 93-523 (December 16, 1974), entitled the Safe
Drinking Water Act, added a new title XIV to the Public Health
Service Act. Although commonly referred to as the Safe Drinking
Water Act, title XIV has not previously been amended to include
a short title. The bill provides that title XIV may be cited as
the Safe Drinking Water Act and renames P.L. 93-523 as the Safe
Drinking Water Act of 1974.
Conforming amendments are made to section headings and
titles to reflect new or amended language within individual
sections.
Hearings
On October 19, 1995, the Committee on Environment and
Public Works held a hearing on S. 1316, the Safe Drinking Water
Act Amendments of 1995. Testimony was given by The Honorable
Carol M. Browner, Administrator, United States Environmental
Protection Agency; The Honorable E. Benjamin Nelson, Governor,
State of Nebraska, for the National Governors Association; The
Honorable George V. Voinovich, Governor, State of Ohio, for the
National Governors Association; The Honorable Jeffrey Wennberg,
Mayor, Rutland, Vermont, for the National League of Cities and
the National Association of Counties; Mr. Gurnie Gunter,
Director, Kansas City Water Services Department, for the
Association of Metropolitan Water Agencies; Mr. Erik D. Olson,
Senior Attorney, Natural Resources Defense Council; Mr. Don
Satchwell, for the American Water Works Association; Mr. Dan
Keil, Board Member and National Director, Montana Rural Water
Systems, Inc., for the National Rural Water Association; Dr.
David Ozonoff, Chair, Department of Environmental Health,
Boston University School of Public Health; Dr. Richard James
Bull, Senior Staff Scientist, Batelle Pacific Northwest
Laboratory; Mr. William R. Mills, Jr., General Manager, Orange
County Water District, for the Association of California Water
Agencies. Also, a number of statements were submitted for
inclusion in the record.
Rollcall Votes
Section 7(b) of rule XXVI of the Standing Rules of the
Senate and the rules of the Committee on Environment and Public
Works require that any rollcall votes taken during the
Committee's consideration of a bill be noted in the report.
The Committee met to consider the bill on October 24,
1995. On October 24, the bill was ordered reported by a roll
call vote of 16 ayes to 0 nays.
Regulatory Impact
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact of the reported bill.
S. 1316 is projected to dramatically reduce the scope and
extent of future regulations promulgated to implement the
drinking water program and could potentially reduce current
monitoring costs. Because a large portion of the entities
regulated under the Safe Drinking Water Act are agencies of
local government, the letter from the Congressional Budget
Office printed below provides a detailed statement of the
reduction in regulatory costs that is likely to result from
enactment of the bill.
Current law requires that EPA promulgate drinking water
regulations for 25 new contaminants every 3 years. As indicated
in the section-by-section analysis above, the bill strikes this
requirement and replaces it with a process for the
Administrator to review information concerning drinking water
contaminants. The Administrator is to review 5 contaminants
every 5 years beginning in the year 2001.
Current law requires that maximum contaminant levels be
established at a level that is as close to the level at which
there is no adverse health effect (maximum contaminant level
goal) as is feasible taking cost into consideration. The
reported bill revises the standard setting authority of the Act
to allow the Administrator to set less stringent standards for
future contaminants where the Administrator determines that the
benefits of an MCL at the feasible level do not justify the
costs.
In addition, the bill provides new authority for States
to grant variances to small systems serving fewer than 10,000
persons allowing use treatment technology affordable for these
systems. The current law requires that the Administrator
develop drinking water standards based on the technology and
costs appropriate for large and regional water systems. Small
systems, which lack the economies of scale available to larger
systems, often have difficulty complying with the standards.
The reported bill also revises the standard setting
schedule and process with respect to specific contaminants
including radon, arsenic and sulfate. The Administrator is
directed to set a maximum contaminant level for radon at a
level that is 10 times less stringent than the level that EPA
has proposed under current law. A revised standard for arsenic
is delayed until 2001. The bill also provides EPA with
authority to rely on public education and bottled water, rather
than centralized treatment, to protect the populations
susceptible to adverse effects from high sulfate levels in
drinking water.
The bill also eases the burden of compliance by extending
the period for designing and constructing treatment facilities
needed to meet new or revised the standards. Current law
requires compliance with standards within 18 months of the
promulgation. The bill extends the compliance period to 3 years
and allows a further extension of up to 2 additional years by
the Administrator or the State where the additional time is
needed to meet construction schedules.
The bill also amends the variance and exemption
provisions of the Act to allow for a further extension of up to
3 years where compelling factors, including economic factors
and the availability of funds from the new State loan fund,
warrant such an extension. Small communities are eligible for a
further compliance extension of up to 6 additional years based
on the same factors.
Current regulations impose extensive monitoring
requirements. Many drinking water systems view monitoring
requirements as the most costly and burdensome element of the
drinking water program. The reported bill reduces the
regulatory burden associated with monitoring in several ways.
New authority is provided to States to develop alternative
Statewide monitoring programs. Small systems may substantially
reduce the frequency of monitoring when contaminants have not
been detected. And the monitoring program for unregulated
contaminants is modified to remove the requirement for all but
a representative sample of systems serving fewer than 10,000
people.
Finally, the bill will help water systems comply with the
Act by providing substantial financial assistance. The bill
authorizes $9.6 billion in Federal fund for loans and grants to
assist water systems to finance projects necessary to comply
with drinking water regulations. These funds will reduce the
financial burden imposed on small systems.
New requirements are imposed on public water systems and
other persons in only six provisions.
First, States must adopt authority to prevent a public
water system that does not have the capacity to comply with the
requirements of the Act from commencing operations.
Second, systems receiving assistance from the new SRF
program must have trained and certified operators.
Third, the bill expands the ban on the use of materials
containing lead in drinking water systems and home plumbing.
The largest impact of this provision is implemented through a
voluntary industry standard applicable to plumbing fittings and
fixtures.
Fourth, section 1447 is amended to clarify the waiver of
sovereign immunity for Federal agencies with respect to
compliance with the Act and comparable State and local laws.
Fifth, the bill imposes the standards set for tap water
under the Safe Drinking Water Act as regulations on the quality
of bottled water, if the Food and Drug Administration has not
acted within 180 days of the issuance of the tap water
standards to establish bottled water standards.
Sixth, the public notification provisions of the Act are
modified to make them more workable and to ensure that notice
of violations is provided in a more timely fashion. These
modifications will not, however, increase the frequency of
notices as compared to current law.
The bill will not have any effect on the personal privacy
of individuals.
Cost of Legislation
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 7, 1995.
Hon. John H. Chafee,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1316, the Safe
Drinking Water Act Amendments of 1995.
Enacting S. 1316 would affect both direct spending and
receipts; therefore, pay-as-you-go procedures would apply.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
June E. O'Neill
----------
CONGRESSIONAL BUDGET OFFICE
cost estimate
November 7, 1995.
1. BILL NUMBER: S. 1316
2. BILL TITLE: Safe Drinking Water Act Amendments of 1995.
3. BILL STATUS: As ordered reported by the Senate
Committee on Environment and Public Works on October, 24, 1995.
4. BILL PURPOSE: The bill would amend the Safe Drinking
Water Act (SDWA) to authorize the Environmental Protection
Agency (EPA) to make grants to States for capitalizing State
revolving loan funds (SRFs). These SRFs would finance the
construction of facilities for the treatment of drinking water.
The bill would authorize appropriations of $1 billion annually
over the 1996-2003 period for these capitalization grants. In
addition, major provisions of the bill would:
amend the procedures that EPA uses to identify
contaminants for regulation under the SDWA;
allow States to establish an alternative
monitoring program for contaminants in drinking
water;
allow operators of small drinking water systems to
obtain variances from drinking water standards
under certain conditions;
direct EPA to define treatment technologies that
are feasible for small drinking water systems when
the agency issues new contaminant regulations;
require States to ensure that public water systems
have the technical expertise and financial
resources to implement the SDWA;
establish a standard for the amount of radon in
drinking water;
authorize appropriations of $100 million annually
for State public water system supervision programs
(PWSS), $40 million annually for protecting
underground drinking water sources, $35 million
annually for protecting drinking water wellhead
areas, and $35 million annually for assisting small
drinking water systems; and
authorize a loan for capital improvements to the
Washington Aqueduct, which is operated by the U.S.
Corps of Engineers to provide drinking water to the
District of Columbia and parts of Northern
Virginia.
5. ESTIMATED COST TO THE FEDERAL GOVERNMENT: Assuming
appropriation of the entire amounts authorized for
discretionary programs, enacting S. 1316 would lead to fiscal
year 1996 funding for safe drinking water programs about $1.2
billion above the 1995 appropriation. CBO estimates that the
bill would authorize appropriations totaling nearly $7 billion
over the 1996-2000 period.
The authorization for most of EPA's safe drinking water
activities expired in 1991, but the program has been continued
through annual appropriations. In 1995 about $166 million was
appropriated to EPA for safe drinking water work and grants. In
addition to this amount, $700 million was appropriated in 1995
and $599 million was appropriated in 1994 for EPA
capitalization grants to safe drinking water State revolving
loan funds (SRFs). Spending of these SRF funds was made
contingent upon enactment of legislation authorizing safe
drinking water SRFs. Public Law 104-19 rescinded all but $225
million of the SRF appropriations.
Enacting S. 1316 would have a small effect on revenues from
civil and criminal penalties and on resulting direct spending.
Finally, enacting the bill could increase direct spending for
the payments of judgments against the Federal Government
resulting from claims made by States under SDWA; however, CBO
cannot predict the number or amount of any such judgments that
could result from enacting the bill. The estimated budgetary
effects of S. 1316 are summarized in the following table.
(By fiscal year, in millions of dollars)
----------------------------------------------------------------------------------------------------------------
1995 1996 1997 1998 1999 2000
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATIONS
Spending Under Current Law
Budget Authority.............................................. 166 0 0 0 0 0
Estimated Outlays............................................. 161 66 17 0 0 0
Proposed changes
Estimated Authorization Level................................. 0 1,371 1,386 1,388 1,389 1,391
Estimated Outlays............................................. 0 257 649 1,045 1,262 1,360
Spending Under S. 1316
Estimated Authorization Level................................. 166 1,371 1,386 1,388 1,389 1,391
Estimated Outlays............................................. 161 323 666 1,045 1,262 1,360
ADDITIONAL REVENUES AND DIRECT SPENDING\1\
Revenues
Estimated Revenues............................................ -- a a a a a
Estimated Budget Authority.................................... -- -- a a a a
Estimated Outlays............................................. -- -- a a a a
----------------------------------------------------------------------------------------------------------------
a = Less than $500,000.
\1\ The bill also could increase direct spending for judgments against the government, but CBO cannot estimate
the amount of any judgment payments that might occur from enacting S. 1316.
The costs of this bill fall within budget function 300.
6. BASIS OF ESTIMATE:
Spending Subject to Appropriations. For purposes of this
estimate, CBO assumes that the bill will be enacted before 1996
appropriations for EPA are provided and that all funds
authorized by S. 1316 will be appropriated for each year. Over
the 1996-2003 period, the bill would authorize appropriations
totaling $10.6 billion, including $8 billion for grants to safe
drinking water State revolving loan funds.
In addition to the bill's specified authorization amounts,
CBO has estimated that $60 million to $70 million a year would
be necessary to pay for activities authorized by the bill
without specific dollar authorizations. Estimated costs for
these activities are based on information provided by EPA
Estimated outlays are based on historical spending patterns of
ongoing EPA drinking water programs and its grant program for
waste water treatment State revolving loan funds.
CBO estimates that enacting the bill would require about
$55 million annually (at 1996 price levels) to pay for EPA's
general oversight and administrative costs for the safe
drinking water program. This amount would constitute an
increase of about $15 million above EPA's current program
costs, principally for administration of the new SRF program.
We estimate that no funds would be required for grants to
States for the source-water protection programs that would be
established under section 17 of the bill because States are
unlikely to implement the optional petition programs described
in the bill. CBO also estimates a cost of at least $5 million
annually over the 1996-2000 period for EPA to prepare the
reports on environmental priorities, costs, and benefits that
would be required by section 28 of the bill.
CBO believes that the proposed authority for modernizing
the Washington Aqueduct should be treated as authority for
providing a Federal loan to the three localities that receive
water from the aqueduct. In effect, the localities are
borrowing money from the Treasury to pay for modernizing the
aqueduct. Such a loan would be subject to credit reform
provisions of the Budget Enforcement Act of 1990. We estimate
that this authorization would have no net cost to the Federal
Government because the bill would allow the Secretary of the
Treasury to impose loan terms and conditions on the localities
involved sufficient to offset any subsidy cost of the loan.
The Army Corps of Engineers estimates that the aqueduct
modernization project would cost about $275 million in 1995
dollars and would take 7 years to complete. Credit reform
requires that the subsidy cost of any loan--estimated as a net
present value--be recorded as an outlay in the year that the
loan is disbursed. But since the bill would require that the
three localities pay interest and any additional amounts
necessary to offset the risk of default, the subsidy cost of
this loan would be zero. Hence, we estimate that the proposed
loan would have no effect on outlays.
Revenues and Direct Spending. Enactment of this bill would
increase governmental receipts from civil and criminal
penalties, as well as direct spending from the Crime Victims
Fund, but CBO expects that the amounts involved would be
insignificant. Any additional amounts deposited into the Crime
Victims Fund would be spent in the following year.
In addition, section 22 of the bill would explicitly waive
any Federal immunity from administrative orders or civil or
administrative fines or penalties assessed under SDWA, and
would clarify that Federal facilities are subject to reasonable
service charges assessed in connection with a Federal or State
program. This provision of SDWA may encourage States to seek to
impose fines and penalties on the Federal Government under
SDWA. If Federal agencies contest these fines and penalties, it
is possible that payments would have to be made from the
government's Claims and Judgments Fund, if not otherwise
provided from appropriated funds. The Claims and Judgments Fund
is a permanent, open-ended appropriation, and any amounts paid
from it would be considered direct spending. CBO cannot predict
the number or the dollar amount of judgments against the
government that could result from enactment of this bill.
Further, we cannot determine whether those judgments would be
paid from the Claims and Judgments Fund or from appropriated
funds.
7. PAY-AS-YOU-GO CONSIDERATIONS: Section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985 sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts through 1998. Enacting S. 1316 would
increase governmental receipts from civil and criminal
penalties, and the spending of such penalties; hence, pay-as-
you-go provisions would apply. The following table summarizes
CBO's estimate of the bill's pay-as-you-go effects.
(by fiscal year, in millions of dollars)
------------------------------------------------------------------------
1996 1997 1998
------------------------------------------------------------------------
Change in outlays............................... 0 0 0
Change in receipts.............................. 0 0 0
------------------------------------------------------------------------
8. ESTIMATED COST TO STATE AND LOCAL GOVERNMENTS: S. 1316
would change the process for setting standards for drinking
water contaminants, alter requirements for monitoring and
treatment, and create State revolving loan funds to provide
low-cost financing for public water systems.
The primary impact of the bill on State and local
governments would be to reduce the likely costs of complying
with future drinking water regulations. These future
regulations would impose significant costs, primarily on local
public water systems. The number and severity of these
regulations is likely to be less under S. 1316. However,
because these regulations are not yet in place, we cannot
estimate the magnitude of any savings at this time.
For example, the bill would change the level at which
future standards would be set for drinking water contaminants.
By allowing EPA to consider the cost of compliance and the
extent of the reduction in risks to health when establishing
new standards, the bill would allow less stringent standards to
be set in some circumstances and would therefore lower the cost
of compliance for local water systems. Again, because these
regulations are not yet in place, we cannot estimate the
magnitude of any savings, although we expect that they would be
significant.
The bill also would create some new responsibilities
(mostly for States), but CBO expects that the cost of these new
responsibilities would likely be far less than the potential
savings realized from changing the current standard-setting
process and altering current monitoring and treatment
requirements. Furthermore, the bill extends the authorization
of certain existing appropriations and authorizes the
appropriation of additional Federal funds to help State and
local governments meet compliance costs. In total, the bill
would authorize over $9.9 billion in funding for State and
local governments over fiscal years 1996 to 2003 and would make
available for spending about $225 million that was previously
appropriated in fiscal years 1994 and 1995. Assuming the
appropriation of these funds, CBO estimates that the bill would
likely result in significant net savings to State and local
governments.
Changes Likely to Reduce Compliance Costs
Standard-Setting
The bill would change the procedures for determining
permissible levels of contaminants in drinking water in ways
that would likely lower compliance costs for public water
systems. First, it would rescind the requirement that the EPA
Administrator issue rules for 25 drinking water contaminants
every 3 years. No specific number of contaminants would have to
be regulated. Although it is possible that with this change EPA
would regulate more contaminants than current law dictates, CBO
expects that the agency would regulate fewer contaminants than
currently required.
Second, the bill would allow EPA to set the maximum
contaminant level goal (MCLG) for contaminants known or likely
to be carcinogens at a level other than zero in some
circumstances. MCLGs are concentration levels below which there
is thought to be no adverse effect on human health. Under
current law, the maximum contaminant level (MCL) is an
enforceable standard that is set as close to the MCLG as EPA
determines is feasible. Current law requires MCLGs for known or
likely carcinogens to be set at zero.
Third, the bill would give EPA the authority to set MCLs at
a level other than the feasible level if using the feasible
level would increase the health risks from other contaminants.
If EPA uses this authority, it must set the MCL at a level that
minimizes the overall health risk. Current law does not allow
EPA to consider the effect of new regulations on the
concentration of contaminants that are already regulated.
Fourth, the bill would require that EPA conduct a cost-
benefit analysis for national primary drinking water
regulations before they are proposed. The bill also would
require EPA, when proposing a maximum contaminant level, to
publish a determination as to whether the benefits of the
proposed MCL justify the costs of complying with it. EPA would
be given the discretionary authority to establish less
stringent standards when it determines that the benefits of an
MCL set at the feasible level would not justify the cost of
compliance or when it determines that the contaminant occurs
almost exclusively in small systems. If EPA uses this
discretionary authority, it would have to set the MCL at a
level that maximizes health risk reduction at a cost justified
by the benefits. While current law requires EPA to perform
cost/benefit analyses of new regulations, it does not give the
agency the discretion to use those analyses as justification
for changing the standards contained in new regulations. These
last three changes in current law would give EPA greater
discretion to set less stringent standards in future
regulations. Any use of that discretion would lower the cost of
compliance for public water systems.
Finally, the bill would establish an MCL for radon and
would set specific requirements for regulations governing
arsenic and sulfates in drinking water. The impact of these
provisions on State and local government budgets is difficult
to gauge, since EPA has not yet written final regulations for
these contaminants. The bill would require the EPA
Administrator to issue an MCL for radon of 3,000 picocuries per
liter of water (pCi/Lwater). The impact of this change is
difficult to assess because the MCL for radon under current law
has not yet been determined. EPA has issued a draft MCL of 300
pCi/Lwater, and agency officials estimate that public drinking
water systems serving 17 million people would be required to
treat water for radon at that level. Under the higher MCL in
the bill, systems serving fewer than 1 million people would
have to treat for radon. Without a clear indication of the MCLs
EPA would establish for other substances under current law, CBO
has no sound basis for estimating the possible savings that
would result from these provisions.
Monitoring
Section 19 would change monitoring requirements for local
water systems in ways that probably would lower compliance
costs. First, it would allow the EPA Administrator to waive
monitoring requirements for States under certain conditions.
Second, it would allow States with primary enforcement
responsibility to establish alternative monitoring requirements
for some national drinking water regulations. Alternative
requirements could apply to all or just some public water
systems in the State. Third, this section would give States
with primary enforcement responsibility separate authority to
establish alternate monitoring requirements specifically for
small systems. Fourth, under ``representative monitoring
plans'' developed by the States, small and medium water systems
would probably monitor for unregulated contaminants less
frequently than they would under current law. Finally, this
section would direct the EPA Administrator to pay the
reasonable costs of testing and analysis that small systems
incur by carrying out the representative monitoring plans.
Compliance Period, Exemptions, and Variances
Section 11 would change the date that primary drinking
water regulations become effective from eighteen months to 3
years after the date of promulgation, unless the EPA
Administrator determines that an earlier date is practicable.
This change would give water systems more time to install new
equipment or take other steps necessary to come into compliance
with the new regulation.
Section 13 would ease the conditions under which a State
with primary enforcement responsibility may grant exemptions
from primary drinking water regulations. Exemptions are
currently given to water systems that, because of ``compelling
factors,'' cannot comply with national drinking water
regulations. These exemptions must be accompanied by a schedule
that indicates when the system will come into compliance with
the regulation. This section would specifically provide that a
system serving a disadvantaged community may be eligible for an
exemption.
Section 14 of the bill would set out conditions under which
small systems could be granted variances from complying with
primary drinking water regulations. Variances are currently
given to water systems that, because of the quality of their
raw water sources, cannot comply with regulations, even after
applying the best technology or treatment technique. This
section would broaden the qualifying criteria for small water
systems, increasing the likelihood that they would be granted
variances.
New Requirements That Would Increase Costs
Conditions of Primacy
Several sections of the bill would increase the
responsibilities of States only if they choose to accept
primary enforcement responsibility for national drinking water
regulations. Every State except Wyoming currently has primary
enforcement authority. Specifically, primacy States would have
to set up new procedures to review applications for variances
submitted by small systems and ensure that systems remain
eligible for any variances granted. They would also have to
establish requirements for the training and certification of
operators of public water systems. Beginning in fiscal year
1997, they would have to prepare an annual report for EPA on
violations of national primary drinking water regulations
committed by their public water systems. Primacy States would
also have to consider and act upon consolidation proposals from
public water systems.
These new requirements would entail some costs for primacy
States. Based on information from State drinking water
officials, CBO believes that if all funds authorized are
subsequently appropriated, States would probably receive enough
money to pay for these additional requirements.
Procedures for Small Systems
Some provisions of this bill would require all States,
whether or not they have accepted primary enforcement
responsibility, to institute new procedures that would benefit
small water systems. These requirements could impose
significant additional costs on the States themselves. For
example, section 19 of the bill would require each State to
develop a ``representative monitoring plan'' to assess the
occurrence of unregulated contaminants in small water systems.
Under these plans, only a representative sample of small water
systems in each State would be required to monitor for
unregulated contaminants. Current law requires all systems to
do such monitoring. While these plans could reduce the cost of
monitoring for most small systems, they would require extra
effort by the States. Based on information from a number of
State drinking water officials, CBO believes that if all funds
authorized are later appropriated, the States would probably
receive enough funding to pay for any additional costs.
Section 15 of the bill would require each State to take
certain actions to ensure that public water systems in the
State develop the technical, managerial, and financial capacity
to comply with drinking water regulations. States would have to
prepare a ``capacity development strategy'' for small water
systems as well as a list of systems that have not complied
with drinking water regulations. In some circumstances, States
would be allowed to spend money from their annual SRF
capitalization grant to pay for developing and implementing
their strategy.
Record-Keeping and Notification
The bill includes other provisions that might lead to
additional recordkeeping and reporting responsibilities for
States and for public water systems. Section 4 would allow the
Administrator of the Environmental Protection Agency to require
States and localities to submit monitoring data and other
information necessary for developing studies, work plans, or
national primary drinking water regulations. This section could
increase reporting costs for State and local governments, but
on balance the bill would likely result in a significant
decrease in overall monitoring requirements and costs.
Section 20 of the bill would substitute more specific
legislative requirements for current regulations governing how
water systems notify customers of violations of national
primary drinking water regulations. For example, this section
would add a new requirement that community water systems notify
customers of violations by mail. These requirements might
result in increased costs for local governments.
Definition of Public Water System
Section 24 would change the definition of ``public water
system'' to include systems that provide water for residential
use through ``other constructed conveyances.'' This change
would make drinking water regulations applicable to some
irrigation districts that currently supply water to residential
customers by means other than pipes. Districts would not fall
under the new definition if alternative water is being provided
for residential uses or ff the water provided for residential
uses is being treated by the provider, a pass-through entity,
or the user. Those districts that fall under the new definition
could face increased costs for treatment or for providing an
alternative water supply.
CBO is still gathering information on the number of
districts that would be affected by this change; however, we
believe that because most of the water supplied by these
districts is for agricultural uses, the amount of water that
they would need to treat would be a small fraction of the water
they supply. Furthermore, the bill would allow districts to
make residential users of their water responsible for treatment
or for obtaining an alternative water supply.
Authorizations of Appropriations
The bill would authorize the appropriation of over $9.9
billion for State and local governments over fiscal years 1996
to 2003. The largest authorization would be $8.0 billion for
the creation of State revolving loan funds (SRFs). In addition,
the bill would make available for spending $225 million that
was appropriated for the revolving funds in fiscal years 1994
and 1995. If the authorized funds are appropriated, these SRFs
would be a significant new source of low-cost infrastructure
financing for many public water supply systems. The bill would
give States the flexibility to transfer capitalization grant
funds between the new safe drinking water SRFs and the SRFs
established by the Clean Water Act for financing wastewater
treatment facilities.
The bill would also extend the authorization for grants to
the States for public water system supervision (PWSS) programs
through fiscal year 2003 at $100 million per year and in some
situations would allow States to supplement their PWSS grant by
reserving an equal amount from their annual SRF capitalization
grant. The PWSS programs implement the Safe Drinking Water Act
at the State level through enforcement, staff training, data
management, sanitary surveys, and certification of testing
laboratories. The fiscal year 1995 appropriation for PWSS
grants totaled $70 million. Both EPA and the Association of
State Drinking Water Administrators have found this level of
funding to be inadequate to meet the requirements of current
law.
The bill would also allow the District of Columbia,
Arlington County, Virginia, and Falls Church, Virginia to enter
into agreements to pay the Army Corps of Engineers to modernize
the Washington Aqueduct. The Corps estimates that the
modernization would cost about $275 million in 1995 dollars and
would take around 7 years to complete. The terms of the
agreements are subject to negotiation, but it is likely that
payment of principal and interest would begin within two or 3
years and would be spread out over thirty years. The three
localities would raise the necessary funds by increasing the
water rates paid by their customers. The localities' respective
shares of the costs would be roughly as follows: District of
Columbia (75 percent), Arlington County (15 percent), and Falls
Church (10 percent).
9. ESTIMATE COMPARISON: None.
10. PREVIOUS CBO ESTIMATE: None.
11. ESTIMATE PREPARED BY: Federal Cost Estimate: Kim Cawley
(226-2860) and Stephanie Weiner (226-2720). State and Local
Government Cost Estimate: Pepper Santalucia (225-3220).
12. ESTIMATE APPROVED BY: Paul N. Van de Water, Assistant
Director for Budget Analysis
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: existing law as proposed to
be omitted is printed in bold and enclosed in brackets; new
matter proposed to be added to existing law is printed in
italic; and existing law in which no change is proposed is
shown in roman.
TITLE XIV--SAFETY OF PUBLIC WATER SYSTEMS \1\
\1\ This title, commonly referred to as the ``Safe Drinking Water
Act,'' consists of title XIV of the Public Health Service Act (42
U.S.C. 300f-300j-9) as added by Public Law 93-523 (December 16, 1974),
and amendments made by subsequent enactments.
---------------------------------------------------------------------------
------
short title
Sec. 1400. This title may be cited as the `Safe Drinking Water Act'.
Part A--Definitions
definitions
Sec. 1401. For purposes of this title:
(1) The term `primary drinking water regulation' means a
regulation which--
(A) applies to public water systems;
(B) specifies contaminants which, in the judgment of
the Administrator, may have any adverse effect on the
health of persons;
(C) specifies for each such contaminant either--
(i) a maximum contaminant level, if, in the
judgment of the Administrator, it is
economically and technologically feasible to
ascertain the level of such contaminant in
water in public water systems, or
(ii) if, in the judgment of the
Administrator, it is not economically or
technologically feasible to so ascertain the
level of such contaminant, each treatment
technique known to the Administrator which
leads to a reduction in the level of such
contaminant sufficient to satisfy the
requirements of section 1412; and
(D) contains criteria and procedures to assure a
supply of drinking water which dependably complies with
such maximum contaminant levels; including accepted
methods for quality control and testing procedures to
insure compliance with such levels and to insure proper
operation and maintenance of the system, and
requirements as to (i) the minimum quality of water
which may be taken into the system and (ii) siting for
new facilities for public water systems. At any time
after promulgation of a regulation referred to in this
paragraph, the Administrator may add equally effective
quality control and testing procedures by guidance
published in the Federal Register. The procedures shall
be treated as an alternative for public water systems
to the quality control and testing procedures listed in
the regulation.
(2) The term `secondary drinking water regulation' means a
regulation which applies to public water systems and which
specifies the maximum contaminant levels which, in the judgment
of the Administrator, are requisite to protect the public
welfare. Such regulations may apply to any contaminant in
drinking water (A) which may adversely affect the odor or
appearance of such water and consequently may cause a
substantial number of the persons served by the public water
system providing such water to discontinue its use, or (B)
which may otherwise adversely affect public welfare. Such
regulations may vary according to geographic and other
circumstances.
(3) The term `maximum contaminant level' means the maximum
permissible level of a contaminant in water which is delivered
to any user of a public water system.
[(4) The] (4) Public water system._
(A) In general._The term `public water system' means
a system for the provision to the public of [piped
water for human consumption] water for human
consumption through pipes or other constructed
conveyances, if such system has at least fifteen
service connections or regularly serves at least
twenty-five individuals. Such term includes [(A)] (i)
any collection, treatment, storage, and distribution
facilities under control of the operator of such system
and used primarily in connection with such system, and
[(B)] (ii) any collection or pretreatment storage
facilities not under such control which are used
primarily in connection with such system.
(B) Connections._
(i) Residential use._
(I) In general._A connection
described in subclause (II) shall not
be considered to be a connection for
determining whether the system is a
public water system under this title,
if--
(aa) the Administrator or the
State (in the case of a State
exercising primary enforcement
responsibility for public water
systems) determines that
alternative water to achieve
the equivalent level of public
health protection provided by
the applicable national primary
drinking water regulation is
provided for residential or
similar uses for drinking and
cooking; or
(bb) the Administrator or the
State (in the case of a State
exercising primary enforcement
responsibility for public water
systems) determines that the
water provided for residential
or similar uses for drinking
and cooking is centrally
treated or treated at the point
of entry by the provider, a
pass-through entity, or the
user to achieve the equivalent
level of protection provided by
the applicable national primary
drinking water regulations.
(II) Connections._A connection
referred to in this subclause is a
connection to a water system that
conveys water by a means other than a
pipe principally for 1 or more purposes
other than residential use (which other
purposes include irrigation, stock
watering, industrial use, or municipal
source water prior to treatment)--
(aa) for a residential use
(consisting of drinking,
bathing, cooking, or other
similar use); or
(bb) to a facility for a use
similar to a residential use.
(ii) Irrigation districts._An irrigation
district in existence prior to May 18, 1994,
that provides primarily agricultural service
through a piped water system with only
incidental residential use shall not be
considered to be a public water system if the
system and the residential users of the system
comply with subclauses (I) and (II) of clause
(i).
(5) The term `supplier of water' means any person who owns
or operates a public water system.
(6) The term `contaminant' means any physical, chemical,
biological, or radiological substance or matter in water.
(7) The term `Administrator' means the Administrator of the
Environmental Protection Agency.
(8) The term `Agency' means the Environmental Protection
Agency.
(9) The term `Council' means the National Drinking Water
Advisory Council established under section 1446.
(10) The term `municipality' means a city, town, or other
public body created pursuant to State law, or an Indian tribe.
(11) The term `Federal agency' means any department,
agency, or instrumentality of the United States.
(12) The term `person' means an individual, corporation,
company, association, partnership, State, municipality, or
Federal agency (and includes officers, employees, and agents of
any corporation, company, association, State, municipality, or
Federal agency).
(13) [The] (A) Except as provided in subparagraph (B), the
term `State' includes, in addition to the several States, only
the District of Columbia, Guam, the Commonwealth of Puerto
Rico, the Northern Mariana Islands, the Virgin Islands,
American Samoa, and the Trust Territory of the Pacific Islands.
(B) For purposes of part G, the term `State' means
each of the 50 States and the Commonwealth of Puerto
Rico.
(14) The term `Indian Tribe' means any Indian tribe having
a Federally recognized governing body carrying out substantial
governmental duties and powers over any area. For purposes of
part G, the term includes any Native village (as defined in
section 3(c) of the Alaska Native Claims Settlement Act (43
U.S.C. 1602(c))).
(15) Community Water System._The term `community water
system' means a public water system that--
(A) serves at least 15 service connections used by
year-round residents of the area served by the system;
or
(B) regularly serves at least 25 year-round
residents.
(16) Noncommunity Water System._The term `noncommunity
water system' means a public water system that is not a
community water system.
Part B--Public Water Systems
coverage
Sec. 1411. Subject to sections 1415 and 1416, national
primary drinking water regulations under this part shall apply
to each public water system in each State; except that such
regulations shall not apply to a public water system--
(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.
national drinking water regulations
Sec. 1412. (a)(1) Effective on the enactment of the Safe
Drinking Water Act Amendments of 1986, each national interim or
revised primary drinking water regulation promulgated under
this section before such enactment shall be deemed to be a
national primary drinking water regulation under subsection
(b). No such regulation shall be required to comply with the
standards set forth in subsection (b)(4) unless such regulation
is amended to establish a different maximum contaminant level
after the enactment of such amendments.
(2) After the enactment of the Safe Drinking Water Act
Amendments of 1986 each recommended maximum contaminant level
published before the enactment of such amendments shall be
treated as a maximum contaminant level goal.
(3) Whenever a national primary drinking water regulation
is proposed under [paragraph (1), (2), or (3) of subsection
(b)] paragraph (1) or (2) of subsection (b) for any
contaminant, the maximum contaminant level goal for such
contaminant shall be proposed simultaneously. Whenever a
national primary drinking water regulation is promulgated under
[paragraph (1), (2), or (3) of subsection (b)] paragraph (1) or
(2) of subsection (b) for any contaminant, the maximum
contaminant level goal for such contaminant shall be published
simultaneously.
(4) Paragraph (3) shall not apply to any recommended
maximum contaminant level published before the enactment of the
Safe Drinking Water Act Amendments of 1986.
[(b)(1) In the case of those contaminants listed in the
Advance Notice of Proposed Rulemaking published in volume 47,
Federal Register, page 9352, and in volume 48, Federal
Register, page 45502, the Administrator shall publish maximum
contaminant level goals and promulgate national primary
drinking water regulations--
(A) not later than 12 months after the enactment of
the Safe Drinking Water Act Amendments of 1986 for not
less than 9 of those listed contaminants;
(B) not later than 24 months after such enactment for
not less than 40 of those listed contaminants; and
(C) not later than 36 months after such enactment for
the remainder of such listed contaminants.
(2)(A) If the Administrator identifies a drinking water
contaminant the regulation of which, in the judgment of the
Administrator, is more likely to be protective of public health
(taking into account the schedule for regulation under
paragraph (1) than a contaminant referred to in paragraph (1),
the Administrator may publish a maximum contaminant level goal
and promulgate a national primary drinking water regulation for
such identified contaminant in lieu of regulating the
contaminant referred to in such paragraph. There may be no more
than 7 contaminants in paragraph (1) for which substitutions
may be made. Regulation of a contaminant identified under this
paragraph shall be in accordance with the schedule applicable
to the contaminant for which the substitution is made.
(B) If the Administrator identifies one or more
contaminants for substitution under this paragraph, the
Administrator shall publish in the Federal Register not late
than one year after the enactment of the Safe Drinking Water
Act Amendments of 1986 a list of contaminants proposed for
substitution, the contaminants referred to in paragraph (1) for
which substitutions are to be made, and the basis for the
judgment that regulation of such proposed substitute
contaminants is more likely to be protective of public health
(taking into account the schedule for regulation under such
paragraph). Following a period of 60 days for public comment,
the Administrator shall publish in the Federal Register a final
list of contaminants to be substituted and contaminants
referred to in paragraph (1) for which substitutions are to be
made, together with responses to significant comments.
(C) Any contaminant referred to in paragraph (1) for which
a substitution is made, pursuant to subparagraph (A) of this
paragraph, shall be included on the priority list to be
published by the Administrator not later than January 1, 1988,
pursuant to paragraph (3)(A).
(D) The Administrator's decision to regulate a contaminant
identified pursuant to this paragraph in lieu of a contaminant
referred to in paragraph (1) shall not be subject to judicial
review.
(3)(A) The Administrator shall publish maximum contaminant
level goals and promulgate national primary drinking water
regulations for each contaminant (other than a contaminant
referred to in paragraph (1) or (2) for which a national
primary drinking water regulation was promulgated) which, in
the judgment of the Administrator, may have any adverse effect
on the health of persons and which is known or anticipated to
occur in public water systems. Not later than January 1, 1988,
and at 3-year intervals thereafter, the Administrator shall
publish a list of contaminants which are known or anticipated
to occur in public water systems and which may require
regulation under this Act.
(B) For the purpose of establishing the list under
subparagraph (A), the Administrator shall form an advisory
working group including members from the National Toxicology
Program and the Environmental Protection Agency's Offices of
Drinking Water, Pesticides, Toxic Substances, Ground Water,
Solid Waste and Emergency Response and any others the
Administrator deems appropriate. The Administrator's
consideration of priorities shall include, but not be limited
to, substances referred to in section 101(14) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, and substances registered as pesticides
under the Federal Insecticide, Fungicide, and Rodenticide Act.
(C) Not later than 24 months after the listing of
contaminants under subparagraph (A), the Administrator shall
publish proposed maximum contaminant level goals and national
primary drinking water regulations for not less than 25
contaminants from the list established under subparagraph (A).
(D) Not later than 36 months after the listing of
contaminants under subparagraph (A), the Administrator shall
publish a maximum contaminant goal and promulgate a national
primary drinking water regulation for those contaminants for
which proposed maximum contaminant level goals and proposed
national primary drinking water regulations were published
under subparagraph (C).]
(b) Standards.--
(1) Identification of contaminants for listing._
(A) General authority._The Administrator
shall publish a maximum contaminant level goal
and promulgate a national primary drinking
water regulation for each contaminant (other
than a contaminant referred to in paragraph (2)
for which a national primary drinking water
regulation has been promulgated as of the date
of enactment of the Safe Drinking Water Act
Amendments of 1995) if the Administrator
determines, based on adequate data and
appropriate peer-reviewed scientific
information and an assessment of health risks,
conducted in accordance with sound and
objective scientific practices, that--
(i) the contaminant may have an
adverse effect on the health of
persons; and
(ii) the contaminant is known to
occur or there is a substantial
likelihood that the contaminant will
occur in public water systems with a
frequency and at levels of public
health concern.
(B) Selection and listing of contaminants for
consideration._
(i) In general._Not later than July
1, 1997, the Administrator (after
consultation with the Secretary of
Health and Human Services) shall
publish and periodically, but not less
often than every 5 years, update a list
of contaminants that are known or
anticipated to occur in drinking water
provided by public water systems and
that may warrant regulation under this
title.
(ii) Research and study plan._At such
time as a list is published under
clause (i), the Administrator shall
describe available and needed
information and research with respect
to--
(I) the health effects of the
contaminants;
(II) the occurrence of the
contaminants in drinking water;
and
(III) treatment techniques
and other means that may be
feasible to control the
contaminants.
(iii) Comment._The Administrator
shall seek comment on each list and any
research plan that is published from
officials of State and local
governments, operators of public water
systems, the scientific community, and
the general public.
(C) Determination.--
(i) In general._Except as provided in
clause (ii), not later than July 1,
2001, and every 5 years thereafter, the
Administrator shall take one of the
following actions for not fewer than 5
contaminants:
(I) Publish a determination
that information available to
the Administrator does not
warrant the issuance of a
national primary drinking water
regulation.
(II) Publish a determination
that a national primary
drinking water regulation is
warranted based on information
available to the Administrator,
and proceed to propose a
maximum contaminant level goal
and national primary drinking
water regulation not later than
2 years after the date of
publication of the
determination.
(III) Propose a maximum
contaminant level goal and
national primary drinking water
regulation.
(ii) Insufficient information._If the
Administrator determines that available
information is insufficient to make a
determination for a contaminant under
clause (i), the Administrator may
publish a determination to continue to
study the contaminant. Not later than 5
years after the Administrator
determines that further study is
necessary for a contaminant pursuant to
this clause, the Administrator shall
make a determination under clause (i).
(iii) Assessment._The determinations
under clause (i) shall be based on an
assessment of--
(I) the available scientific
knowledge that is consistent
with the requirements of
paragraph (3)(A) and useful in
determining the nature and
extent of adverse effects on
the health of persons that may
occur due to the presence of
the contaminant in drinking
water;
(II) information on the
occurrence of the contaminant
in drinking water; and
(III) the treatment
technologies, treatment
techniques, or other means that
may be feasible in reducing the
contaminant in drinking water
provided by public water
systems.
(iv) Priorities._In making
determinations under this subparagraph,
the Administrator shall give priority
to those contaminants not currently
regulated that are associated with the
most serious adverse health effects and
that present the greatest potential
risk to the health of persons due to
the presence of the contaminant in
drinking water provided by public water
systems.
(v) Review._Each document setting
forth the determination for a
contaminant under clause (i) shall be
available for public comment at such
time the determination is published.
(vi) Judicial review._Determinations
made by the Administrator pursuant to
clause (i)(I) shall be considered final
agency actions for the purposes of
section 1448. No determination under
clause (i)(I) shall be set aside by a
court pursuant to a review authorized
under that section, unless the court
finds that the determination is
arbitrary and capricious.
(D) Urgent threats to public health._The
Administrator may promulgate an interim
national primary drinking water regulation for
a contaminant without listing the contaminant
under subparagraph (B) or publishing a
determination for the contaminant under
subparagraph (C) to address an urgent threat to
public health as determined by the
Administrator after consultation with and
written response to any comments provided by
the Secretary of Health and Human Services,
acting through the director of the Centers for
Disease Control and Prevention or the director
of the National Institutes of Health. A
determination for any contaminant in accordance
with subparagraph (C) subject to an interim
regulation under this subparagraph shall be
issued not later than 3 years after the date on
which the regulation is promulgated and the
regulation shall be repromulgated, or revised
if appropriate, not later than 5 years after
that date.
(E) Monitoring data and other information._
The Administrator may require, in accordance
with section 1445(a)(2), the submission of
monitoring data and other information necessary
for the development of studies, research plans,
or national primary drinking water regulations.
(2) Schedules and deadlines._
(A) In general._In the case of the
contaminants listed in the Advance Notice of
Proposed Rulemaking published in volume 47,
Federal Register, page 9352, and in volume 48,
Federal Register, page 45502, the Administrator
shall publish maximum contaminant level goals
and promulgate national primary drinking water
regulations--
(i) not later than 1 year after June
19, 1986, for not fewer than 9 of the
listed contaminants;
(ii) not later than 2 years after
June 19, 1986, for not fewer than 40 of
the listed contaminants; and
(iii) not later than 3 years after
June 19, 1986, for the remainder of the
listed contaminants.
(B) Substitution of contaminants._If the
Administrator identifies a drinking water
contaminant the regulation of which, in the
judgment of the Administrator, is more likely
to be protective of public health (taking into
account the schedule for regulation under
subparagraph (A)) than a contaminant referred
to in subparagraph (A), the Administrator may
publish a maximum contaminant level goal and
promulgate a national primary drinking water
regulation for the identified contaminant in
lieu of regulating the contaminant referred to
in subparagraph (A). Substitutions may be made
for not more than 7 contaminants referred to in
subparagraph (A). Regulation of a contaminant
identified under this subparagraph shall be in
accordance with the schedule applicable to the
contaminant for which the substitution is made.
(C) Disinfectants and disinfection
byproducts._
(i) Information collection rule._
(I) In general._Not later
than December 31, 1995, the
Administrator shall, after
notice and opportunity for
public comment, promulgate an
information collection rule to
obtain information that will
facilitate further revisions to
the national primary drinking
water regulation for
disinfectants and disinfection
byproducts, including
information on microbial
contaminants such as
cryptosporidium.
(II) Extension._The
Administrator may extend the
deadline under subclause (I)
for up to 180 days if the
Administrator determines that
progress toward approval of an
appropriate analytical method
to screen for cryptosporidium
is sufficiently advanced and
approval is likely to be
completed within the additional
time period.
(ii) Additional deadlines._The time
intervals between promulgation of a
final information collection rule, an
Interim Enhanced Surface Water
Treatment Rule, a Final Enhanced
Surface Water Treatment Rule, a Stage I
Disinfectants and Disinfection
Byproducts Rule, and a Stage II
Disinfectants and Disinfection
Byproducts Rule shall be in accordance
with the schedule published in volume
59, Federal Register, page 6361
(February 10, 1994), in table III.13 of
the proposed Information Collection
Rule. If a delay occurs with respect to
the promulgation of any rule in the
timetable established by this
subparagraph, all subsequent rules
shall be completed as expeditiously as
practicable subject to agreement by all
the parties to the negotiated
rulemaking, but no later than a revised
date that reflects the interval or
intervals for the rules in the
timetable.
(D) Prior requirements._The requirements of
subparagraphs (C) and (D) of section 1412(b)(3)
(as in effect before the amendment made by
section 4(a) of the Safe Drinking Water Act
Amendments of 1995), and any obligation to
promulgate regulations pursuant to such
subparagraphs not promulgated as of the date of
enactment of the Safe Drinking Water Act
Amendments of 1995, are superseded by this
paragraph and paragraph (1).
(3) Risk assessment, management and communication._
(A) Use of science in decisionmaking._In carrying out
this title, the Administrator shall use--
(i) the best available, peer-reviewed science
and supporting studies conducted in accordance
with sound and objective scientific practices;
and
(ii) data collected by accepted methods or
best available methods (if the reliability of
the method and the nature of the decision
justifies use of the data).
(B) Public information._In carrying out this section,
the Administrator shall ensure that the presentation of
information on public health effects is comprehensive,
informative and understandable. The Administrator
shall, in a document made available to the public in
support of a regulation promulgated under this section,
specify, to the extent practicable--
(i) each population addressed by any estimate
of public health effects;
(ii) the expected risk or central estimate of
risk for the specific populations;
(iii) each appropriate upper-bound or lower-
bound estimate of risk;
(iv) each uncertainty identified in the
process of the assessment of public health
effects and research that would assist in
resolving the uncertainty; and
(v) peer-reviewed studies known to the
Administrator that support, are directly
relevant to, or fail to support any estimate of
public health effects and the methodology used
to reconcile inconsistencies in the scientific
data.
(C) Health risk reduction and cost analysis._
(i) Maximum contaminant levels._Not later
than 90 days prior to proposing any national
primary drinking water regulation that includes
a maximum contaminant level, the Administrator
shall, with respect to a maximum contaminant
level that would be considered in accordance
with paragraph (4) in a proposed regulation and
each alternative maximum contaminant level that
would be considered in a proposed regulation
pursuant to paragraph (5) or (6)(A), publish,
seek public comment on, and use for the
purposes of paragraphs (4), (5), and (6) an
analysis of--
(I) the health risk reduction
benefits (including non-quantifiable
health benefits identified and
described by the Administrator, except
that such benefits shall not be used by
the Administrator for purposes of
determining whether a maximum
contaminant level is or is not
justified unless there is a factual
basis in the rulemaking record to
conclude that such benefits are likely
to occur) expected as the result of
treatment to comply with each level;
(II) the health risk reduction
benefits (including non-quantifiable
health benefits identified and
described by the Administrator, except
that such benefits shall not be used by
the Administrator for purposes of
determining whether a maximum
contaminant level is or is not
justified unless there is a factual
basis in the rulemaking record to
conclude that such benefits are likely
to occur) expected from reductions in
co-occurring contaminants that may be
attributed solely to compliance with
the maximum contaminant level,
excluding benefits resulting from
compliance with other proposed or
promulgated regulations;
(III) the costs (including non-
quantifiable costs identified and
described by the Administrator, except
that such costs shall not be used by
the Administrator for purposes of
determining whether a maximum
contaminant level is or is not
justified unless there is a factual
basis in the rulemaking record to
conclude that such costs are likely to
occur) expected solely as a result of
compliance with the maximum contaminant
level, including monitoring, treatment,
and other costs and excluding costs
resulting from compliance with other
proposed or promulgated regulations;
(IV) the incremental costs and
benefits associated with each
alternative maximum contaminant level
considered;
(V) the effects of the contaminant on
the general population and on groups
within the general population such as
infants, children, pregnant women, the
elderly, individuals with a history of
serious illness, or other
subpopulations that are identified as
likely to be at greater risk of adverse
health effects due to exposure to
contaminants in drinking water than the
general population;
(VI) any increased health risk that
may occur as the result of compliance,
including risks associated with co-
occurring contaminants; and
(VII) other relevant factors,
including the quality and extent of the
information, the uncertainties in the
analysis supporting subclauses (I)
through (VI), and factors with respect
to the degree and nature of the risk.
(ii) Treatment techniques._Not later than 90
days prior to proposing a national primary
drinking water regulation that includes a
treatment technique in accordance with
paragraph (7)(A), the Administrator shall
publish and seek public comment on an analysis
of the health risk reduction benefits and costs
likely to be experienced as the result of
compliance with the treatment technique and
alternative treatment techniques that would be
considered in a proposed regulation, taking
into account, as appropriate, the factors
described in clause (i).
(iii) Approaches to measure and value
benefits._The Administrator may identify valid
approaches for the measurement and valuation of
benefits under this subparagraph, including
approaches to identify consumer willingness to
pay for reductions in health risks from
drinking water contaminants.
(iv) Form of notice._Whenever a national
primary drinking water regulation is expected
to result in compliance costs greater than
$75,000,000 per year, the Administrator shall
provide the notice required by clause (i) or
(ii) through an advanced notice of proposed
rulemaking.
(v) Authorization._There are authorized to be
appropriated to the Administrator, acting
through the Office of Ground Water and Drinking
Water, to conduct studies, assessments, and
analyses in support of regulations or the
development of methods, $35,000,000 for each of
fiscal years 1996 through 2003.
[(4) Each] (4) Goals and standards._
(A) Maximum Contaminant Level Goals._Each maximum
contaminant level goal established under this
subsection shall be set at the level at which no known
or anticipated adverse effects on the health of persons
occur and which allows an adequate margin of safety.
The maximum contaminant level goal for contaminants
that are known or likely to cause cancer in humans may
be set at a level other than zero, if the Administrator
determines, based on the best available, peer-reviewed
science, that there is a threshold level below which
there is unlikely to be any increase in cancer risk and
the Administrator sets the maximum contaminant level
goal at that level with an adequate margin of safety.
[Each national] (B) Maximum contaminant levels._
Except as provided in paragraphs (5) and (6), each
national primary drinking water regulation for a
contaminant for which a maximum contaminant level goal
is established under this subsection shall specify a
[maximum level] maximum contaminant level for such
contaminant which is as close to the maximum
contaminant level goal as is feasible.
(C) Determination._At the time the Administrator
proposes a national primary drinking water regulation
under this paragraph, the Administrator shall publish a
determination as to whether the benefits of the maximum
contaminant level justify, or do not justify, the costs
based on the analysis conducted under paragraph (3)(C).
[(5) For the] (D) Definition of feasible._For the
purposes of this subsection, the term ``feasible''
means feasible with the use of the best technology,
treatment techniques and other means which the
Administrator finds, after examination for efficacy
under field conditions and not solely under laboratory
conditions, are available (taking cost into
consideration). For the purpose of [paragraph (4)] this
paragraph, granular activated carbon is feasible for
the control of synthetic organic chemicals, and any
technology, treatment technique, or other means found
to be the best available for the control of synthetic
organic chemicals must be at least as effective in
controlling synthetic organic chemicals as granular
activated carbon.
[(6) Each national] (E) Feasible Technologies._Each
national primary drinking water regulation which
establishes a maximum contaminant level shall list the
technology, treatment techniques, and other means which
the Administrator finds to be feasible for purposes of
meeting such maximum contaminant level, but a
regulation under [this paragraph] this subsection shall
not require that any specified technology, treatment
technique, or other means be used for purposes of
meeting such maximum contaminant level. The
Administrator shall include in the list any technology,
treatment technique, or other means that is feasible
for small public water systems serving--
(i) a population of 10,000 or fewer but more
than 3,300;
(ii) a population of 3,300 or fewer but more
than 500; and
(iii) a population of 500 or fewer but more
than 25;
and that achieves compliance with the maximum
contaminant level, including packaged or modular
systems and point-of-entry treatment units that are
controlled by the public water system to ensure proper
operation and maintenance and compliance with the
maximum contaminant level and equipped with mechanical
warnings to ensure that customers are automatically
notified of operational problems.
(5) Additional health risk considerations._
(A) In general._Notwithstanding paragraph (4), the
Administrator may establish a maximum contaminant level
for a contaminant at a level other than the feasible
level, if the technology, treatment techniques, and
other means used to determine the feasible level would
result in an increase in the health risk from drinking
water by--
(i) increasing the concentration of other
contaminants in drinking water; or
(ii) interfering with the efficacy of
drinking water treatment techniques or
processes that are used to comply with other
national primary drinking water regulations.
(B) Establishment of level._If the Administrator
establishes a maximum contaminant level or levels or
requires the use of treatment techniques for any
contaminant or contaminants pursuant to the authority
of this paragraph--
(i) the level or levels or treatment
techniques shall minimize the overall risk of
adverse health effects by balancing the risk
from the contaminant and the risk from other
contaminants the concentrations of which may be
affected by the use of a treatment technique or
process that would be employed to attain the
maximum contaminant level or levels; and
(ii) the combination of technology, treatment
techniques, or other means required to meet the
level or levels shall not be more stringent
than is feasible (as defined in paragraph
(4)(D)).
(6) Additional health risk reduction and cost
considerations._
(A) In general._Notwithstanding paragraph (4), if the
Administrator determines based on an analysis conducted
under paragraph (3)(C) that the benefits of a maximum
contaminant level promulgated in accordance with
paragraph (4) would not justify the costs of complying
with the level, the Administrator may, after notice and
opportunity for public comment, promulgate a maximum
contaminant level for the contaminant that maximizes
health risk reduction benefits at a cost that is
justified by the benefits.
(B) Exception._The Administrator shall not use the
authority of this paragraph to promulgate a maximum
contaminant level for a contaminant, if the benefits of
compliance with a national primary drinking water
regulation for the contaminant that would be
promulgated in accordance with paragraph (4)
experienced by--
(i) persons served by large public water
systems; and
(ii) persons served by such other systems as
are unlikely, based on information provided by
the States, to receive a variance under section
1415(e); would justify the costs to the systems
of complying with the regulation. This
subparagraph shall not apply if the contaminant
is found almost exclusively in small systems
(as defined in section 1415(e)).
(C) Disinfectants and disinfection byproducts._The
Administrator may not use the authority of this
paragraph to establish a maximum contaminant level in a
Stage I or Stage II national primary drinking water
regulation for contaminants that are disinfectants or
disinfection byproducts (as described in paragraph
(2)), or to establish a maximum contaminant level or
treatment technique requirement for the control of
cryptosporidium. The authority of this paragraph may be
used to establish regulations for the use of
disinfection by systems relying on ground water sources
as required by paragraph (8).
(D) Judicial Review._A determination by the
Administrator that the benefits of a maximum
contaminant level or treatment requirement justify or
do not justify the costs of complying with the level
shall be reviewed by the court pursuant to section 1448
only as part of a review of a final national primary
drinking water regulation that has been promulgated
based on the determination and shall not be set aside
by the court under that section, unless the court finds
that the determination is arbitrary and capricious.
(7)(A) The Administrator is authorized to promulgate a
national primary drinking water regulation that requires the
use of a treatment technique in lieu of establishing a maximum
contaminant level, if the Administrator makes a finding that it
is not economically or technologically feasible to ascertain
the level of the contaminant. In such case, the Administrator
shall identify those treatment techniques which, in the
Administrator's judgment, would prevent known or anticipated
adverse effects on the health of persons to the extent
feasible. Such regulations shall specify each treatment
technique known to the Administrator which meets the
requirements of this paragraph, but the Administrator may grant
a variance from any specified treatment technique in accordance
with section 1415(a)(3).
(B) Any schedule referred to in this subsection for the
promulgation of a national primary drinking water regulation
for any contaminant shall apply in the same manner if the
regulation requires a treatment technique in lieu of
establishing a maximum contaminant level.
(C)(i) Not later than 18 months after the enactment of the
Safe Drinking Water Act Amendments of 1986, the Administrator
shall propose and promulgate national primary drinking water
regulations specifying criteria under which filtration
(including coagulation and sedimentation, as appropriate) is
required as a treatment technique for public water systems
supplied by surface water sources. In promulgating such rules,
the Administrator shall consider the quality of source waters,
protection afforded by watershed management, treatment
practices (such as disinfection and length of water storage)
and other factors relevant to protection of health.
(ii) In lieu of the provisions of section 1415 the
Administrator shall specify procedures by which the State
determines which public water systems within its jurisdiction
shall adopt filtration under the criteria of clause (i). The
State may require the public water system to provide studies or
other information to assist in this determination. The
procedures shall provide notice and opportunity for public
hearing on this determination. If the State determines that
filtration is required, the State shall prescribe a schedule
for compliance by the public water system with the filtration
requirement. A schedule shall require compliance within 18
months of a determination made under clause (iii).
(iii) Within 18 months from the time that the Administrator
establishes the criteria and procedures under this
subparagraph, a State with primary enforcement responsibility
shall adopt any necessary regulations to implement this
subparagraph. Within 12 months of adoption of such regulations
the State shall make determinations regarding filtration for
all the public water systems within its jurisdiction supplied
by surface waters.
(iv) If a State does not have primary enforcement
responsibility for public water systems, the Administrator
shall have the same authority to make the determination in
clause (ii) in such State as the State would have under that
clause. Any filtration requirement or schedule under this
subparagraph shall be treated as if it were a requirement of a
national primary drinking water regulation.
(v) Filtration technology for small systems._At the same
time as the Administrator proposes an Interim Enhanced Surface
Water Treatment Rule pursuant to paragraph (2)(C)(ii), the
Administrator shall propose a regulation that describes
treatment techniques that meet the requirements for filtration
pursuant to this subparagraph and are feasible for community
water systems serving a population of 3,300 or fewer and
noncommunity water systems.
(8) [Not later than 36 months after the enactment of the
Safe Drinking Water Act Amendments of 1986, the Administrator
shall propose and promulgate] At any time after the end of the
3-year period that begins on the date of enactment of the Safe
Drinking Water Act Amendments of 1995 but not later than the
date on which the Administrator promulgates a Stage II
rulemaking for disinfectants and disinfection byproducts (as
described in paragraph (2)), the Administrator shall also
promulgate national primary drinking water regulations
requiring disinfection as a treatment technique for all public
water systems[.], including surface water systems and, as
necessary, ground water systems. After consultation with the
States, the Administrator shall (as part of the regulations)
promulgate criteria that the Administrator, or a State that has
primary enforcement responsibility under section 1413, shall
apply to determine whether disinfection shall be required as a
treatment technique for any public water system served by
ground water. The Administrator shall simultaneously promulgate
a rule specifying criteria that will be used by the
Administrator (or delegated State authorities) to grant
variances from this requirement according to the provisions of
section 1415(a)(1)(B) and 1415(a)(3). In implementing section
1442(g) the Administrator or the delegated State authority
shall, where appropriate, give special consideration to
providing technical assistance to small public water systems in
complying with the regulations promulgated under this
paragraph.
[(9) National primary drinking water regulations shall be
amended whenever changes in technology, treatment techniques,
and other means permit greater protection of the health of
persons, but in any event such regulations shall be reviewed at
least once every 3 years. Such review shall include an analysis
of innovations or changes in technology, treatment techniques
or other activities that have occurred over the previous 3-year
period and that may provide for greater protection of the
health of persons. The findings of such review shall be
published in the Federal Register. If, after opportunity for
public comment, the Administrator concludes that the
technology, treatment techniques, or other means resulting from
such innovations or changes are not feasible within the meaning
of paragraph (5), an explanation of such conclusion shall be
published in the Federal Register.]
(9) Review and revision._The Administrator shall, not less
often than every 6 years, review and revise, as appropriate,
each national primary drinking water regulation promulgated
under this title. Any revision of a national primary drinking
water regulation shall be promulgated in accordance with this
section, except that each revision shall maintain or provide
for greater protection of the health of persons.
[(10) National primary drinking water regulations
promulgated under this subsection (and amendments thereto)
shall take effect eighteen months after the date of their
promulgation. Regulations under subsection (a) shall be
superseded by regulations under this subsection to the extent
provided by the regulations under this subsection.]
(10) Effective date._A national primary drinking water
regulation promulgated under this section shall take effect on
the date that is 3 years after the date on which the regulation
is promulgated unless the Administrator determines that an
earlier date is practicable, except that the Administrator, or
a State in the case of an individual system, may allow up to 2
additional years to comply with a maximum contaminant level or
treatment technique if the Administrator or State determines
that additional time is necessary for capital improvements.
(11) No national primary drinking water regulation may
require the addition of any substance for preventive health
case purposes unrelated to contamination of drinking water.
(12) Arsenic._
(A) Schedule and standard._Notwithstanding paragraph
(2), the Administrator shall promulgate a national
primary drinking water regulation for arsenic in
accordance with the schedule established by this
paragraph and pursuant to this subsection.
(B) Research plan._Not later than 180 days after the
date of enactment of this paragraph, the Administrator
shall develop a comprehensive plan for research in
support of drinking water rulemaking to reduce the
uncertainty in assessing health risks associated with
exposure to low levels of arsenic. The Administrator
shall consult with the Science Advisory Board
established by section 8 of the Environmental Research,
Development, and Demonstration Act of 1978 (42 U.S.C.
4365), other Federal agencies, and interested public
and private entities.
(C) Research projects._The Administrator shall carry
out the research plan, taking care to avoid duplication
of other research in progress. The Administrator may
enter into cooperative research agreements with other
Federal agencies, State and local governments, and
other interested public and private entities to carry
out the research plan.
(D) Assessment._Not later than 3\1/2\ years after the
date of enactment of this paragraph, the Administrator
shall review the progress of the research to determine
whether the health risks associated with exposure to
low levels of arsenic are sufficiently well understood
to proceed with a national primary drinking water
regulation. The Administrator shall consult with the
Science Advisory Board, other Federal agencies, and
other interested public and private entities as part of
the review.
(E) Proposed regulation._The Administrator shall
propose a national primary drinking water regulation
for arsenic not later than January 1, 2000.
(F) Final regulation._Not later than January 1, 2001,
after notice and opportunity for public comment, the
Administrator shall promulgate a national primary
drinking water regulation for arsenic.
(13) Radon in drinking water._
(A) Regulation._Notwithstanding paragraph (2), not
later than 180 days after the date of enactment of this
paragraph, the Administrator shall promulgate a
national primary drinking water regulation for radon.
(B) Maximum contaminant level._Notwithstanding any
other provision of law, the regulation shall provide
for a maximum contaminant level for radon of 3,000
picocuries per liter.
(C) Revision._
(i) In general._Subject to clause (ii), a
revision to the regulation promulgated under
subparagraph (A) may be made pursuant to this
subsection. The revision may include a maximum
contaminant level less stringent that 3,000
picocuries per liter as provided in paragraphs
(4) and (9) or a maximum contaminant level more
stringent than 3,000 picocuries per liter as
provided in clause (ii).
(ii) Maximum contaminant level._
(I) Criteria for revision._The
Administrator shall not revise the
maximum contaminant level for radon to
a more stringent level than the level
established under subparagraph (B)
unless--
(aa) the revision is made to
reflect consideration of risks
from the ingestion of radon in
drinking water and episodic
uses of drinking water;
(bb) the revision is
supported by peer-reviewed
scientific studies conducted in
accordance with sound and
objective scientific practices;
and
(cc) based on the studies,
the National Academy of
Sciences and the Science
Advisory Board, established by
section 8 of the Environmental
Research, Development, and
Demonstration Act of 1978 (42
U.S.C. 4365), consider a
revision of the maximum
contaminant level to be
appropriate.
(II) Amount of revision._If the
Administrator determines to revise the
maximum contaminant level for radon in
accordance with subclause (I), the
maximum contaminant level shall be
revised to a level that is no more
stringent than is necessary to reduce
risks to human health from radon in
drinking water to a level that is
equivalent to risks to human health
from radon in outdoor air based on the
national average concentration of radon
in outdoor air.
(14) Sulfate._
(A) In general._In the absence of scientific evidence
suggesting new or more serious health effects than are
suggested by the evidence available on the date of
enactment of this paragraph, for the purposes of
promulgation of a national primary drinking water
regulation for sulfate, notwithstanding the
requirements of paragraphs (4) and (7), the
Administrator shall specify in the regulation--
(i) a requirement for best technology or
other means under this subsection; and
(ii) requirements for public notification and
options for the provision of alternative water
supplies to populations at risk as an
alternative means of complying with the
regulation.
(B) Schedule._Notwithstanding paragraph (2), the
regulation referred to in subparagraph (A) shall be
promulgated not later than 2 years after the date of
enactment of this paragraph.
(C) Authority._Paragraph (6) shall apply to the
national primary drinking water regulation for sulfate
first promulgated after the date of enactment of this
paragraph only if the Administrator reproposes the
national primary drinking water regulation for sulfate
after that date based on evidence suggesting new or
more serious health effects as described in
subparagraph (A).
(D) Effect on other laws._
(i) Federal laws._Notwithstanding part C,
section 311 of the Federal Water Pollution
Control Act (33 U.S.C. 1321), subtitle C or D
of the Solid Waste Disposal Act (42 U.S.C. 6921
et seq.), or section 107 or 121(d) of the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42
U.S.C. 9607 and 9621(d)), no national primary
drinking water regulation for sulfate shall
be--
(I) used as a standard for
determining compliance with any
provision of any law other than this
subsection;
(II) used as a standard for
determining appropriate cleanup levels
or whether cleanup should be undertaken
with respect to any facility or site;
(III) considered to be an applicable
or relevant and appropriate requirement
for any such cleanup; or
(IV) used for the purpose of defining
injury to a natural resource;
unless the Administrator, by rule and after
notice and opportunity for public comment,
determines that the regulation is appropriate
for a use described in subclause (I), (II),
(III), or (IV).
(ii) State laws._This subparagraph shall not
affect any requirement of State law, including
the applicability of any State standard similar
to the regulation published under this
paragraph as a standard for any cleanup action,
compliance action, or natural resource damage
action taken pursuant to such a law.
(15) System treatment technologies._
(A) Guidance or regulations._
(i) In general._At the same time as the
Administrator promulgates a national primary
drinking regulation pursuant to this section,
the Administrator shall issue guidance or
regulations describing all treatment
technologies for the contaminant that is the
subject of the regulation that are feasible
with the use of best technology, treatment
techniques, or other means that the
Administrator finds, after examination for
efficacy under field conditions and not solely
under laboratory conditions, are available
taking cost into consideration for public water
systems serving--
(I) a population of 10,000 or fewer
but more than 3,300;
(II) a population of 3,300 or fewer
but more than 500; and
(III) a population of 500 or fewer
but more than 25.
(ii) Contents._The guidance or regulations
shall identify the effectiveness of the
technology, the cost of the technology, and
other factors related to the use of the
technology, including requirements for the
quality of source water to ensure adequate
protection of human health, considering removal
efficiencies of the technology, and
installation and operation and maintenance
requirements for the technology.
(iii) Limitation._The Administrator shall not
issue guidance or regulations for a technology
under this paragraph unless the technology
adequately protects human health, considering
the expected useful life of the technology and
the source waters available to systems for
which the technology is considered to be
feasible.
(B) Regulations and guidance._Not later than 2 years
after the date of enactment of this paragraph and after
consultation with the States, the Administrator shall
issue guidance or regulations under subparagraph (A)
for each national primary drinking water regulation
promulgated prior to the date of enactment of this
paragraph for which a variance may be granted under
section 1415(e). The Administrator may, at any time
after a national primary drinking water regulation has
been promulgated, issue guidance or regulations
describing additional or new or innovative treatment
technologies that meet the requirements of subparagraph
(A) for public water systems described in subparagraph
(A)(i) that are subject to the regulation.
(C) No specified technology._A description under
subparagraph (A) of the best technology or other means
available shall not be considered to require or
authorize that the specified technology or other means
be used for the purpose of meeting the requirements of
any national primary drinking water regulation.
(c) The Administrator shall publish proposed national
secondary drinking water regulations within 270 days after the
date of enactment of this title. Within 90 days after
publication of any such regulation, he shall promulgate such
regulation with such modifications as he deems appropriate.
Regulations under this subsection may be amended from time to
time.
(d) Regulations under this section shall be prescribed in
accordance with section 553 of title 5, United States Code
(relating to rulemaking), except that the Administrator shall
provide opportunity for public hearing prior to promulgation of
such regulations. In proposing and promulgating regulations
under this section, the Administrator shall consult with the
Secretary and the National Drinking Water Advisory Council.
(e) The Administrator shall request comments from the
Science Advisory Board (established under the Environmental
Research, Development, and Demonstration Act of 1978) prior to
proposal of a maximum contaminant level goal and national
primary drinking water regulation. The Board shall respond, as
it deems appropriate, within the time period applicable for
promulgation of the national primary drinking water standard
concerned. This subsection shall, under no circumstances, be
used to delay final promulgation of any national primary
drinking water standard.
state primary enforcement responsibility
Sec. 1413. (a) For purposes of this title, a State has
primary enforcement responsibility for public water systems
during any period for which the Administrator determines
(pursuant to regulation prescribed under subsection (b)) that
such State--
[(1) has adopted drinking water regulations which are
no less stringent than the national primary drinking
water regulations in effect under such section 1412(a)
and 1412(b);]
(1) has adopted drinking water regulations that are
no less stringent than the national primary drinking
water regulations promulgated by the Administrator
under section 1412 not later than 2 years after the
date on which the regulations are promulgated by the
Administrator;
(2) has adopted and is implementing adequate
procedures for the enforcement of such State
regulations, including conducting such monitoring and
making such inspections as the Administrator may
require by regulation;
(3) will keep such records and make such reports with
respect to its activities under paragraphs (1) and (2)
as the Administrator may require by regulation;
(4) if it permits variances or exemptions, or both,
from the requirements of its drinking water regulations
which meet the requirements of paragraph (1), permits
such variances and exemptions under conditions and in a
manner which is not less stringent than the conditions
under, and the manner in, which variances and
exemptions may be granted under sections 1415 and 1416;
[and]
(5) has adopted and can implement an adequate plan
for the provision of safe drinking water under
emergency circumstances[.]; and
(6) has adopted authority for administrative
penalties (unless the constitution of the State
prohibits the adoption of the authority) in a maximum
amount--
(A) in the case of a system serving a
population of more than 10,000, that is not
less than $1,000 per day per violation; and
(B) in the case of any other system, that is
adequate to ensure compliance (as determined by
the State);
except that a State may establish a maximum limitation
on the total amount of administrative penalties that
may be imposed on a public water system per violation.
(b)(1) The Administrator shall, by regulation (proposed
within 180 days of the date of enactment of this title),
prescribe the manner in which a State may apply to the
Administrator for a determination that the requirements of
paragraphs (1), (2), (3), and (4) of subsection (a) are
satisfied with respect to the State, the manner in which the
determination is made, the period for which the determination
will be effective, and the manner in which the Administrator
may determine that such requirements are no longer met. Such
regulations shall require that before a determination of the
Administrator that such requirements are met or are no longer
met with respect to a State may become effective, the
Administrator shall notify such State of the determination and
the reasons therefor and shall provide an opportunity for
public hearing on the determination. Such regulations shall be
promulgated (with such modifications as the Administrator deems
appropriate) within 90 days of the publication of the proposed
regulations in the Federal Register. The Administrator shall
promptly notify in writing the chief executive officer of each
State of the promulgation of regulations under this paragraph.
Such notice shall contain a copy of the regulations and shall
specify a State's authority under this title when it is
determined to have primary enforcement responsibility for
public water systems.
(2) When an application is submitted in accordance with the
Administrator's regulations under paragraph (1), the
Administrator shall within 90 days of the date on which such
application is submitted (A) make the determination applied
for, or (B) deny the application and notify the applicant in
writing of the reasons for his denial.
(c) Interim Primary Enforcement Authority.--A State that
has primary enforcement authority under this section with
respect to each existing national primary drinking water
regulation shall be considered to have primary enforcement
authority with respect to each new or revised national primary
drinking water regulation during the period beginning on the
effective date of a regulation adopted and submitted by the
State with respect to the new or revised national primary
drinking water regulation in accordance with subsection (b)(1)
and ending at such time as the Administrator makes a
determination under subsection (b)(2) with respect to the
regulation.
enforcement of drinking water regulations
Sec. 1414. (a)(1)(A) Whenever the Administrator finds
during a period during which a State has primary enforcement
responsibility for public water systems (within the meaning of
section 1413(a)) that any public water system--
(i) for which a variance under section 1415 or an
exemption under section 1416 is not in effect, does not
comply with [any national primary drinking water
regulation] any applicable requirement [in effect under
section 1412], or
(ii) for which a variance under section 1415 or an
exemption under section 1416 is in effect, does not
comply with any schedule or other requirement imposed
pursuant thereto,
he shall so notify the State and such public water system and
provide such advice and technical assistance to such State and
public water system as may be appropriate to bring the system
into compliance [with such regulation or requirement] with the
requirement by the earliest feasible time.
(B) If, beyond the thirtieth day after the Administrator's
notification under subparagraph (A), the State has not
commenced appropriate enforcement action, the Administrator
shall issue an order under subsection (g) requiring the public
water system to comply with such [regulation or] applicable
requirement or the Administrator shall commence a civil action
under subsection (b).
[(2) Whenever, on the basis of information available to
him, the Administrator finds during a period during which a
State does not have primary enforcement responsibility for
public water systems that a public water system in such State--
(A) for which a variance under section 1415(a)(2) or
an exemption under section 1416(f) is not in effect,
does not comply with any national primary drinking
water regulation in effect under section 1412, or
(B) for which a variance under section 1415(a)(2) or
an exemption under section 1416(f) is in effect, does
not comply with any schedule or other requirement
imposed pursuant thereto,
the Administrator shall issue an order under subsection (g)
requiring the public water system to comply with such
regulation or requirement or the Administrator shall commence a
civil action under subsection (b).]
(2) Enforcement in nonprimacy states._
(A) In general._If, on the basis of information
available to the Administrator, the Administrator
finds, with respect to a period in which a State does
not have primary enforcement responsibility for public
water systems, that a public water system in the
State--
(i) for which a variance under section 1415
or an exemption under section 1416 is not in
effect, does not comply with any applicable
requirement; or
(ii) for which a variance under section 1415
or an exemption under section 1416 is in
effect, does not comply with any schedule or
other requirement imposed pursuant to the
variance or exemption;
the Administrator shall issue an order under subsection
(g) requiring the public water system to comply with
the requirement, or commence a civil action under
subsection (b).
(B) Notice._If the Administrator takes any action
pursuant to this paragraph, the Administrator shall
notify an appropriate local elected official, if any,
with jurisdiction over the public water system of the
action prior to the time that the action is taken.
(b) The Administrator may bring a civil action in the
appropriate United States district court to require compliance
with [a national primary drinking water regulation] any
applicable requirement, with an order issued under subsection
(g), or with any schedule or other requirement imposed pursuant
to a variance or exemption granted under section 1415 or 1416
if--
(1) authorized under paragraph (1) or (2) of
subsection (a), or
(2) if requested by (A) the chief executive officer
of the State in which is located the public water
system which is not in compliance with such regulation
or requirement, or (B) the agency of such State which
has jurisdiction over compliance by public water
systems in the State with national primary drinking
water regulations or State drinking water regulations.
The court may enter, in an action brought under this
subsection, such judgment as protection of public health may
require, taking into consideration the time necessary to comply
and the availability of alternative water supplies; and, if the
court determines that there has been a violation of the
regulation or schedule or other requirement with respect to
which the action was brought, the court may, taking into
account the seriousness of the violation, the population at
risk, and other appropriate factors, impose on the violator a
civil penalty of not to exceed $25,000 for each day in which
such violation occurs.
[(c) Each owner or operator of a public water system shall
give notice to the persons served by it--
(1) of any failure on the part of the public water
system to--
(A) comply with an applicable maximum
contaminant level or treatment technique
requirement of, or a testing procedure
prescribed by, a national primary drinking
water regulation, or
(B) perform monitoring required by section
1445(a), and
(2) if the public water system is subject to a
variance granted under section 1415(a)(1)(A) or
1415(a)(2) for an inability to meet a maximum
contaminant level requirement or is subject to an
exemption granted under section 1416, of--
(A) the existence of such variance or
exemption, and
(B) any failure to comply with the
requirements of any schedule prescribed
pursuant to the variance or exemption.
The Administrator shall by regulation prescribe the form,
manner, and frequency for giving notice under this subsection.
Within 15 months after the enactment of the Safe Drinking Water
Act Amendments of 1986, the Administrator shall amend such
regulations to provide for different types and frequencies of
notice based on the differences between violations which are
intermittent or infrequent and violations which are continuous
or frequent. Such regulations shall also take into account the
seriousness of any potential adverse health effects which may
be involved. Notice of any violation of a maximum contaminant
level or any other violation designated by the Administrator as
posing a serious potential adverse health effect shall be given
as soon as possible, but in no case later than 14 days after
the violation. Notice of a continuous violation of a regulation
other than a maximum contaminant level shall be given no less
frequently than every 3 months. Notice of violations judged to
be less serious shall be given no less frequently than
annually. The Administrator shall specify the types of notice
to be used to provide information as promptly and effectively
as possible taking into account both the seriousness of any
potential adverse health effects and the likelihood of reaching
all affected persons. Notification of violations shall include
notice by general circulation newspaper serving the area and,
whenever appropriate, shall also include a press release to
electronic media and individual mailings. Notice under this
subsection shall provide a clear and readily understandable
explanation of the violation, any potential adverse health
effects, the steps that the system is taking to correct such
violation, and the necessity for seeking alternative water
supplies, if any, until the violation is corrected. Until such
amended regulations are promulgated, the regulations in effect
on the date of the enactment of the Safe Drinking Water Act
Amendments of 1986 shall remain in effect. The Administrator
may also require the owner or operator of a public water system
to give notice to the persons served by it of contaminant
levels of any unregulated contaminant required to be monitored
under section 1445(a). Any person who violates this subsection
or regulations issued under this subsection shall be subject to
a civil penalty of not to exceed $25,000.]
(c) Notice to Persons Served._
(1) In general._Each owner or operator of a public
water system shall give notice to the persons served by
the system--
(A) of any failure on the part of the public
water system to--
(i) comply with an applicable maximum
contaminant level or treatment
technique requirement of, or a testing
procedure prescribed by, a national
primary drinking water regulation; or
(ii) perform monitoring required by
section 1445(a);
(B) if the public water system is subject to
a variance granted under section 1415(a)(1)(A),
1415(a)(2), or 1415(e) for an inability to meet
a maximum contaminant level requirement or is
subject to an exemption granted under section
1416, of--
(i) the existence of the variance or
exemption; and
(ii) any failure to comply with the
requirements of any schedule prescribed
pursuant to the variance or exemption;
and
(C) of the concentration level of any
unregulated contaminant for which the
Administrator has required public notice
pursuant to paragraph (2)(E).
(2) Form, manner, and frequency of notice._
(A) In general._The Administrator shall, by
regulation, and after consultation with the
States, prescribe the manner, frequency, form,
and content for giving notice under this
subsection. The regulations shall--
(i) provide for different frequencies
of notice based on the differences
between violations that are
intermittent or infrequent and
violations that are continuous or
frequent; and
(ii) take into account the
seriousness of any potential adverse
health effects that may be involved.
(B) State requirements._
(i) In general._A State may, by rule,
establish alternative notification
requirements--
(I) with respect to the form
and content of notice given
under and in a manner in
accordance with subparagraph
(C); and
(II) with respect to the form
and content of notice given
under subparagraph (D).
(ii) Contents._The alternative
requirements shall provide the same
type and amount of information as
required pursuant to this subsection
and regulations issued under
subparagraph (A).
(iii) Relationship to section 1413.--
Nothing in this subparagraph shall be
construed or applied to modify the
requirements of section 1413.
(C) Violations with potential to have serious
adverse effects on human health._Regulations
issued under subparagraph (A) shall specify
notification procedures for each violation by a
public water system that has the potential to
have serious adverse effects on human health as
a result of short-term exposure. Each notice of
violation provided under this subparagraph
shall--
(i) be distributed as soon as
practicable after the occurrence of the
violation, but not later than 24 hours
after the occurrence of the violation;
(ii) provide a clear and readily
understandable explanation of--
(I) the violation;
(II) the potential adverse
effects on human health;
(III) the steps that the
public water system is taking
to correct the violation; and
(IV) the necessity of seeking
alternative water supplies
until the violation is
corrected;
(iii) be provided to the
Administrator or the head of the State
agency that has primary enforcement
responsibility under section 1413 as
soon as practicable, but not later than
24 hours after the occurrence of the
violation; and
(iv) as required by the State agency
in general regulations of the State
agency, or on a case-by-case basis
after the consultation referred to in
clause (iii), considering the health
risks involved--
(I) be provided to
appropriate broadcast media;
(II) be prominently published
in a newspaper of general
circulation serving the area
not later than 1 day after
distribution of a notice
pursuant to clause (i) or the
date of publication of the next
issue of the newspaper; or
(III) be provided by posting
or door-to-door notification in
lieu of notification by means
of broadcast media or
newspaper.
(D) Written notice._
(i) In general._Regulations issued
under subparagraph (A) shall specify
notification procedures for violations
other than the violations covered by
subparagraph (C). The procedures shall
specify that a public water system
shall provide written notice to each
person served by the system by notice--
(I) in the first bill (if
any) prepared after the date of
occurrence of the violation;
(II) in an annual report
issued not later than 1 year
after the date of occurrence of
the violation; or
(III) by mail or direct
delivery as soon as
practicable, but not later than
1 year after the date of
occurrence of the violation.
(ii) Form and manner of notice._The
Administrator shall prescribe the form
and manner of the notice to provide a
clear and readily understandable
explanation of--
(I) the violation;
(II) any potential adverse
health effects; and
(III) the steps that the
system is taking to seek
alternative water supplies, if
any, until the violation is
corrected.
(E) Unregulated contaminants._The
Administrator may require the owner or operator
of a public water system to give notice to the
persons served by the system of the
concentration levels of an unregulated
contaminant required to be monitored under
section 1445(a).
(3) Reports._
(A) Annual report by state._
(i) In general._Not later than
January 1, 1997, and annually
thereafter, each State that has primary
enforcement responsibility under
section 1413 shall prepare, make
readily available to the public, and
submit to the Administrator an annual
report on violations of national
primary drinking water regulations by
public water systems in the State,
including violations with respect to--
(I) maximum contaminant
levels;
(II) treatment requirements;
(III) variances and
exemptions; and
(IV) monitoring requirements
determined to be significant by
the Administrator after
consultation with the States.
(ii) Distribution._The State shall
publish and distribute summaries of the
report and indicate where the full
report is available for review.
(B) Annual report by administrator._Not later
than July 1, 1997, and annually thereafter, the
Administrator shall prepare and make available
to the public an annual report summarizing and
evaluating reports submitted by States pursuant
to subparagraph (A) and notices submitted by
public water systems serving Indian Tribes
provided to the Administrator pursuant to
subparagraph (C) or (D) of paragraph (2) and
making recommendations concerning the resources
needed to improve compliance with this title.
The report shall include information about
public water system compliance on Indian
reservations and about enforcement activities
undertaken and financial assistance provided by
the Administrator on Indian reservations, and
shall make specific recommendations concerning
the resources needed to improve compliance with
this title on Indian reservations.
(d) Whenever, on the basis of information available to him,
the Administrator finds that within a reasonable time after
national secondary drinking water regulations have been
promulgated, one or more public water systems in a State do not
comply with such secondary regulations, and that such
noncompliance appears to result from a failure of such State to
take reasonable action to assure that public water systems
throughout such State meet such secondary regulations, he shall
so notify the State.
(e) Nothing in this title 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 requirement otherwise applicable under this
title.
(f) If the Administrator makes a finding of noncompliance
(described in subparagraph (A) or (B) of subsection (a)(1))
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 from technical or other experts, Federal,
State, or other public officials, representatives of such
public water system, persons served by such system, and other
interested persons on--
(1) the ways in which such system can within the
earliest feasible time be brought into compliance with
the regulation or requirement with respect to which
such finding was made, and
(2) the means for the maximum feasible protection of
the public health during any period in which such
system is not in compliance with a national primary
drinking water regulation or requirement applicable to
a variance or exemption.
On the basis of such hearings the Administrator shall issue
recommendations which shall be sent to such State and public
water system and shall be made available to the public and
communications media.
(g)(1) In any case in which the Administrator is authorized
to bring a civil action under this section or under section
1445 with respect to any [regulation, schedule, or other]
applicable requirement, the Administrator also may issue an
order to require compliance with such [regulation, schedule, or
other] applicable requirement.
(2) An order issued under this subsection shall not take
[effect until after notice and opportunity for public hearing
and,] effect, in the case of a State having primary enforcement
responsibility for public water systems in that State, until
after the Administrator has provided the State with an
opportunity to confer with the Administrator regarding the
[proposed order] order. A copy of any order [proposed to be]
issued under this subsection shall be sent to the appropriate
State agency of the State involved if the State has primary
enforcement responsibility for public water systems in that
State. Any order issued under this subsection shall state with
reasonable specificity the nature of the violation. In any case
in which an order under this subsection is issued to a
corporation, a copy of such order shall be issued to
appropriate corporate officers.
(3)(A) Any person who violates, or fails or refuses to
comply with, an order under this subsection shall be liable to
the United States for a civil penalty of not more than $25,000
per day of violation.
[(B) Whenever any civil penalty sought by the Administrator
under this paragraph does not exceed a total of $5,000, the
penalty shall be assessed by the Administrator after notice and
opportunity for a hearing on the record in accordance with
section 554 of title 5 of the United States Code.]
(B) Effect of penalty amounts._In a case in which a civil
penalty sought by the Administrator under this paragraph does
not exceed $5,000, the penalty shall be assessed by the
Administrator after notice and opportunity for a public hearing
(unless the person against whom the penalty is assessed
requests a hearing on the record in accordance with section 554
of title 5, United States Code). In a case in which a civil
penalty sought by the Administrator under this paragraph
exceeds $5,000, but does not exceed $25,000, the penalty shall
be assessed by the Administrator after notice and opportunity
for a hearing on the record in accordance with section 554 of
title 5, United States Code.
(C) Whenever any civil penalty sought by the Administrator
under this [paragraph exceeds $5,000] subsection for a
violation of an applicable requirement exceeds $25,000, the
penalty shall be assessed by a civil action brought by the
Administrator in the appropriate United States district court
(as determined under the provisions of title 28 of the United
States Code).
(D) If any person fails to pay an assessment of a civil
penalty after it has become a final and unappealable order, or
after the appropriate court of appeals has entered final
judgment in favor of the Administrator, the Attorney General
shall recover the amount for which such person is liable in any
appropriate district court of the United States. In any such
action, the validity and appropriateness of the final order
imposing the civil penalty shall not be subject to review.
(h) Consolidation Incentive._
(1) In general._An owner or operator of a public
water system may submit to the State in which the
system is located (if the State has primary enforcement
responsibility under section 1413) or to the
Administrator (if the State does not have primary
enforcement responsibility) a plan (including specific
measures and schedules) for--
(A) the physical consolidation of the system
with 1 or more other systems;
(B) the consolidation of significant
management and administrative functions of the
system with 1 or more other systems; or
(C) the transfer of ownership of the system
that may reasonably be expected to improve
drinking water quality.
(2) Consequences of approval._If the State or the
Administrator approves a plan pursuant to paragraph
(1), no enforcement action shall be taken pursuant to
this part with respect to a specific violation
identified in the approved plan prior to the date that
is the earlier of the date on which consolidation is
completed according to the plan or the date that is 2
years after the plan is approved.
(i) Definition of Applicable Requirement._In this section,
the term `applicable requirement' means--
(1) a requirement of section 1412, 1414, 1415, 1416,
1417, 1441, or 1445;
(2) a regulation promulgated pursuant to a section
referred to in paragraph (1);
(3) a schedule or requirement imposed pursuant to a
section referred to in paragraph (1); and
(4) a requirement of, or permit issued under, an
applicable State program for which the Administrator
has made a determination that the requirements of
section 1413 have been satisfied, or an applicable
State program approved pursuant to this part.
variances
Sec. 1415. (a) Notwithstanding any other provision of this
part, variances from national primary drinking water
regulations may be granted as follows:
(1)(A) A State which has primary enforcement
responsibility for public water systems may grant one
or more variances from an applicable national primary
drinking water regulation to one or more public water
systems within its jurisdiction which, because of
characteristics of raw water sources which are
reasonably available to the systems, cannot meet the
requirements respecting the maximum contaminant levels
of such drinking water regulation. A variance may [only
be issued to a system after the system's application]
be issued to a system on condition that the system
install of the best technology, treatment techniques,
or other means, which the Administrator finds are
available (taking costs into consideration), and based
upon an evaluation satisfactory to the State that
indicates that alternative sources of water are not
reasonably available to the system. The Administrator
shall propose and promulgate his finding of the best
available technology, treatment techniques or other
means available for each contaminant for purposes of
this subsection at the time he proposes and promulgates
a maximum contaminant level for each such contaminant.
The Administrator's finding of best available
technology, treatment techniques or other means for
purposes of this subsection may vary depending on the
number of persons served by the system or for other
physical conditions related to engineering feasibility
and costs of compliance with maximum contaminant levels
as considered appropriate by the Administrator. Before
a State may grant a variance under this subparagraph,
the State must find that the variance will not result
in an unreasonable risk to health. If a State grants a
public water system a variance under this subparagraph,
the State shall prescribe at time the variance is
granted, a schedule for--
(i) compliance (including increments of
progress) by the public water system with each
contaminant level requirement with respect to
which the variance was granted, and
(ii) implementation by the public water
system of such additional control measures as
the State may require for each contaminant,
subject to such contaminant level requirement,
during the period ending on the date compliance
with such requirement is required.
Before a schedule is prescribed by a State pursuant to
this subparagraph may take effect, the State shall
provide notice and opportunity for a public hearing on
the schedule. A notice given pursuant to the preceding
sentence may cover the prescribing of more than one
such schedule and a hearing held pursuant to such
notice shall include each of the schedules covered by
the notice. A schedule prescribed pursuant to this
subparagraph for a public water system granted a
variance shall require compliance by the system with
each contaminant level requirement with respect to
which the variance was granted as expeditiously as
practicable (as the State may reasonably determine).
(B) A State which has primary enforcement
responsibility for public water systems may grant to
one or more public water systems within it jurisdiction
one or more variances from any provision of a national
primary drinking water regulation which requires the
use of a specified treatment technique with respect to
a contaminant if the public water system applying for
the variance demonstrates to the satisfaction of the
State 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. A variance granted
under this subparagraph shall be conditioned on such
monitoring and other requirements as the Administrator
may prescribe.
(C) Before a variance proposed to be granted by a
State under subparagraph (A) or (B) may take effect,
such State shall provide notice and opportunity for
public hearing on the proposed variance. 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. The State shall
promptly notify the Administrator of all variances
granted by it. Such notification shall contain the
reason for the variance (and in the case of a variance
under subparagraph (A), the basis for the finding
required by that subparagraph before the granting of
the variance) and documentation of the need for the
variance.
(D) Each public water system's variance granted by a
State under subparagraph (A) shall be conditioned by
the State upon compliance by the public water system
with the schedule prescribed by the State pursuant to
that subparagraph. The requirements of each schedule
prescribed by a State pursuant to that subparagraph
shall be enforceable by the State under its laws. Any
requirement of a schedule on which a variance granted
under that subparagraph is conditioned may be enforced
under section 1414 as if such requirement was part of a
national primary drinking water regulation.
(E) Each schedule prescribed by a State pursuant to
subparagraph (A) shall be deemed approved by the
Administrator unless the variance for which it was
prescribed is revoked by the Administrator under such
subparagraph.
(F) 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 granted under
subparagraph (A) (and schedules prescribed pursuant
thereto) and under subparagraph (B) by the States
during the one-year period beginning on such effective
date. The Administrator shall conduct such subsequent
reviews of variances and schedules as he deems
necessary to carry out the purposes of this title, but
each subsequent review shall be completed within each
3-year period following the completion of the first
review under this subparagraph. Before conducting any
review under this subparagraph, the Administrator shall
publish notice of the proposed review in the Federal
Register. Such notice shall (i) provide information
respecting the location of data and other information
respecting the variances to be reviewed (including data
and other information concerning new scientific matters
bearing on such variances), and (ii) advise of the
opportunity to submit comments on the variances
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 comments
submitted un connection with such review.
(G)(i) If the Administrator finds that a State has,
in a substantial number of instances, abused its
discretion in granting variances under subparagraph (A)
or (B) or that in a substantial number of cases the
State has failed to prescribe schedules in accordance
with subparagraph (A), the Administrator shall notify
the State of his findings. In determining if a State
has abused its discretion in granting variances in a
substantial number of instances, the Administrator
shall consider the number of persons who are affected
by the variances and if the requirements applicable to
the granting of variances were complied with. A notice
under this clause shall--
(I) identify each public water system with
respect to which the finding was made,
(II) specify the reasons for the finding, and
(III) as appropriate, propose revocations of
specific variances or propose revised schedules
or other requirements for specific public water
systems granted variances, or both.
(ii) The Administrator shall provide reasonable
notice and public hearing on the provisions of each
notice given pursuant to clause (i) of this
subparagraph. After a hearing on a notice pursuant to
such clause, the Administrator shall (I) rescind the
finding for which the notice was given and promptly
notify the State of such rescission, or (II) promulgate
(with such modifications as he deems appropriate) such
variance revocations and revised schedules or other
requirements proposed in such notice as he deems
appropriate. Not later than 180 days after the date a
notice is given pursuant to clause (i) of this
subparagraph, the Administrator shall complete the
hearing on the notice and take the action required by
the preceding sentence.
(iii) If a State is notified under clause (i) of this
subparagraph of a finding of the Administrator made
with respect to a variance granted a public water
system within that State or to a schedule or other
requirements for a variance and if, before a revocation
of such variance or a revision of such schedule or
other requirement promulgated by the Administrator
takes effect, the State takes corrective action with
respect to such variance or schedule or other
requirement which the Administrator determines makes
his finding inapplicable to such variance or schedule
or other requirement, the Administrator shall rescind
the application of his finding to that variance or
schedule or other requirement. No variance revocation
or revised schedule or other requirement may take
effect before the expiration of 90 days following the
date of the notice in which the revocation or revised
schedule or other requirement was proposed.
(2) If a State does not have primary enforcement
responsibility for public water systems, the
Administrator shall have the same authority to grant
variances in such State as the State would have under
paragraph (1) if it had primary enforcement
responsibility.
(3) The Administrator may grant a variance from any
treatment technique requirement of a national primary
drinking water regulation upon a showing by 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
requirement 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.
(b) Any schedule or other requirement on which a variance
granted under paragraph (1)(B) or (2) of subsection (a) is
conditioned may be enforced under section 1414 as if such
schedule or other requirement was part of a national primary
drinking water regulation.
(c) If an application for a variance under subsection (a)
is made, the State receiving the application or the
Administrator, as the case may be, shall act upon such
application within a reasonable period (as determined under
regulations prescribed by the Administrator) after the date of
its submission.
(d) For purposes of this section, the term ``treatment
technique requirement'' means a requirement in a national
primary drinking water regulation which specifies for a
contaminant (in accordance with section 1401(1)(c)(ii)) each
treatment technique known to the Administrator which leads to a
reduction in the level of such contaminant sufficient to
satisfy the requirements of [section 1412(b)(3)] section
1412(b)(7)(A).
(e) Small System Variances._
(1) In general._The Administrator (or a State with
primary enforcement responsibility for public water
systems under section 1413) may grant to a public water
system serving a population of 10,000 or fewer
(referred to in this subsection as a `small system') a
variance under this subsection for compliance with a
requirement specifying a maximum contaminant level or
treatment technique contained in a national primary
drinking water regulation, if the variance meets each
requirement of this subsection.
(2) Availability of variances._A small system may
receive a variance under this subsection if the system
installs, operates, and maintains, in accordance with
guidance or regulations issued by the Administrator,
treatment technology that is feasible for small systems
as determined by the Administrator pursuant to section
1412(b)(15).
(3) Conditions for granting variances._A variance
under this subsection shall be available only to a
system--
(A) that cannot afford to comply, in
accordance with affordability criteria
established by the Administrator (or the State
in the case of a State that has primary
enforcement responsibility under section 1413),
with a national primary drinking water
regulation, including compliance through--
(i) treatment;
(ii) alternative source of water
supply; or
(iii) restructuring or consolidation
(unless the Administrator (or the State
in the case of a State that has primary
enforcement responsibility under
section 1413) makes a written
determination that restructuring or
consolidation is not feasible or
appropriate based on other specified
public policy considerations); and
(B) for which the Administrator (or the State
in the case of a State that has primary
enforcement responsibility under section 1413)
determines that the terms of the variance
ensure adequate protection of human health,
considering the quality of the source water for
the system and the removal efficiencies and
expected useful life of the treatment
technology required by the variance.
(4) Applications._An application for a variance for a
national primary drinking water regulation under this
subsection shall be submitted to the Administrator (or
the State in the case of a State that has primary
enforcement responsibility under section 1413) not
later than the date that is the later of--
(A) 3 years after the date of enactment of
this subsection; or
(B) 1 year after the compliance date of the
national primary drinking water regulation as
established under section 1412(b)(10) for which
a variance is requested.
(5) Variance review and decision._
(A) Timetable._The Administrator (or the
State in the case of a State that has primary
enforcement responsibility under section 1413)
shall grant or deny a variance not later than 1
year after the date of receipt of the
application.
(B) Penalty moratorium._Each public water
system that submits a timely application for a
variance under this subsection shall not be
subject to a penalty in an enforcement action
under section 1414 for a violation of a maximum
contaminant level or treatment technique in the
national primary drinking water regulation with
respect to which the variance application was
submitted prior to the date of a decision to
grant or deny the variance.
(6) Compliance schedules._
(A) Variances._A variance granted under this
subsection shall require compliance with the
conditions of the variance not later than 3
years after the date on which the variance is
granted, except that the Administrator (or the
State in the case of a State that has primary
enforcement responsibility under section 1413)
may allow up to 2 additional years to comply
with a treatment technique, secure an
alternative source of water, or restructure if
the Administrator (or the State) determines
that additional time is necessary for capital
improvements, or to allow for financial
assistance provided pursuant to part G or any
other Federal or State program.
(B) Denied applications._If the Administrator
(or the State in the case of a State that has
primary enforcement responsibility under
section 1413) denies a variance application
under this subsection, the public water system
shall come into compliance with the
requirements of the national primary drinking
water regulation for which the variance was
requested not later than 4 years after the date
on which the national primary drinking water
regulation was promulgated.
(7) Duration of variances._
(A) In general._The Administrator (or the
State in the case of a State that has primary
enforcement responsibility under section 1413)
shall review each variance granted under this
subsection not less often than every 5 years
after the compliance date established in the
variance to determine whether the system
remains eligible for the variance and is
conforming to each condition of the variance.
(B) Revocation of variances._The
Administrator (or the State in the case of a
State that has primary enforcement
responsibility under section 1413) shall revoke
a variance in effect under this subsection if
the Administrator (or the State) determines
that--
(i) the system is no longer eligible
for a variance;
(ii) the system has failed to comply
with any term or condition of the
variance, other than a reporting or
monitoring requirement, unless the
failure is caused by circumstances
outside the control of the system; or
(iii) the terms of the variance do
not ensure adequate protection of human
health, considering the quality of
source water available to the system
and the removal efficiencies and
expected useful life of the treatment
technology required by the variance.
(8) Ineligibility for variances._A variance shall not
be available under this subsection for--
(A) any maximum contaminant level or
treatment technique for a contaminant with
respect to which a national primary drinking
water regulation was promulgated prior to
January 1, 1986; or
(B) a national primary drinking water
regulation for a microbial contaminant
(including a bacterium, virus, or other
organism) or an indicator or treatment
technique for a microbial contaminant.
(9) Regulations and guidance._
(A) In general._Not later than 2 years after
the date of enactment of this subsection and in
consultation with the States, the Administrator
shall promulgate regulations for variances to
be granted under this subsection. The
regulations shall, at a minimum, specify--
(i) procedures to be used by the
Administrator or a State to grant or
deny variances, including requirements
for notifying the Administrator and
consumers of the public water system
applying for a variance and
requirements for a public hearing on
the variance before the variance is
granted;
(ii) requirements for the
installation and proper operation of
treatment technology that is feasible
(pursuant to section 1412(b)(15)) for
small systems and the financial and
technical capability to operate the
treatment system, including operator
training and certification;
(iii) eligibility criteria for a
variance for each national primary
drinking water regulation, including
requirements for the quality of the
source water (pursuant to section
1412(b)(15)(A)); and
(iv) information requirements for
variance applications.
(B) Affordability criteria._Not later than 18
months after the date of enactment of the Safe
Drinking Water Act Amendments of 1995, the
Administrator, in consultation with the States
and the Rural Utilities Service of the
Department of Agriculture, shall publish
information to assist the States in developing
affordability criteria. The affordability
criteria shall be reviewed by the States not
less often than every 5 years to determine if
changes are needed to the criteria.
(10) Review by the administrator._
(A) In general._The Administrator shall
periodically review the program of each State
that has primary enforcement responsibility for
public water systems under section 1413 with
respect to variances to determine whether the
variances granted by the State comply with the
requirements of this subsection. With respect
to affordability, the determination of the
Administrator shall be limited to whether the
variances granted by the State comply with the
affordability criteria developed by the State.
(B) Notice and publication._If the
Administrator determines that variances granted
by a State are not in compliance with
affordability criteria developed by the State
and the requirements of this subsection, the
Administrator shall notify the State in writing
of the deficiencies and make public the
determination.
(C) Objections to variances._
(i) By the administrator._The
Administrator may review and object to
any variance proposed to be granted by
a State, if the objection is
communicated to the State not later
than 90 days after the State proposes
to grant the variance. If the
Administrator objects to the granting
of a variance, the Administrator shall
notify the State in writing of each
basis for the objection and propose a
modification to the variance to resolve
the concerns of the Administrator. The
State shall make the recommended
modification or respond in writing to
each objection. If the State issues the
variance without resolving the concerns
of the Administrator, the Administrator
may overturn the State decision to
grant the variance if the Administrator
determines that the State decision does
not comply with this subsection.
(ii) Petition by consumers.--Not
later than 30 days after a State with
primary enforcement responsibility for
public water systems under section 1413
proposes to grant a variance for a
public water system, any person served
by the system may petition the
Administrator to object to the granting
of a variance. The Administrator shall
respond to the petition not later than
60 days after the receipt of the
petition. The State shall not grant the
variance during the 60-day period. The
petition shall be based on comments
made by the petitioner during public
review of the variance by the State.
exemptions
Sec. 1416. (a) A State which has primary enforcement
responsibility may exempt any public water system within the
State's jurisdiction 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--
(1) due to compelling factors (which may include
economic factors, including qualification of the public
water system as a system serving a disadvantaged
community pursuant to section 1473(e)(1), the public
water system is unable to comply with such contaminant
level of treatment technique requirement, or to
implement measures to develop an alternative source of
water supply,
(2) the public water system was in operation on the
effective date of such contaminant level or treatment
technique requirement, a system that was not in
operation by that date, only if no reasonable
alternative source of drinking water is available to
such new system, and
(3) the granting of the exemption will not result in
an unreasonable risk to health.
(b)(1) If a State grants a public water system an exemption
under subsection (a), the State shall prescribed, at the time
the exemption is granted, a schedule for--
(A) compliance [(including increments of progress)]
(including increments of progress or measures to
develop an alternative source of water supply) by the
public water system with each contaminant level
[requirement and treatment] requirement or treatment
technique requirement with respect to which an
exemption was granted, and
(B) implementation by the public water system of such
control measures as the State may require for each
contaminant, subject to such contaminant level
requirement or treatment technique requirement, during
the period ending on the date compliance with such
requirement is required.
Before a schedule prescribed by a State pursuant to this
subsection may take effect, the State shall provide notice and
opportunity for a public hearing on the schedule. A notice
given pursuant to the preceding sentence may cover the
prescribing of more than one such schedule and a hearing held
pursuant to such notice shall include each of the schedules
covered by the notice.
(2)(A) A schedule prescribed pursuant to this subsection
for a public water system granted an exemption under subsection
(a) shall require compliance by the system with each
contaminant level and treatment technique requirement with
respect to which the exemption was granted as expeditiously as
practicable (as the State may reasonably determine) but
[(except as provided in subparagraph (B))--
(i) 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 1412(a),
not later than 12 months after enactment of the Safe
Drinking Water Act Amendments of 1986; and
(ii) 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 date of
issuance of the exemption.
(B) 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] not later than 3 years after the otherwise
applicable compliance date established in section 1412(b)(10).
(B) No exemption shall be granted unless the public water
system establishes that--
(i) the system cannot meet the standard without
capital improvements which cannot be completed [within
the period of such exemption] prior to the date
established pursuant to section 1412(b)(10);
(ii) in the case of a system which needs financial
assistance for the necessary improvement, the system
has entered into an agreement to obtain such financial
assistance or assistance pursuant to part G, or any
other Federal or State program is reasonably likely to
be available within the period of the exemption; or
(iii) 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.
(C) In the case of a system which does not serve more than
[500 service connections] a population of 3,300 and which needs
financial assistance for the necessary improvements, an
exemption granted under clause (i) or (ii) of subparagraph (B)
may be renewed for one or more additional 2-year periods, but
not to exceed a total of 6 years, if the system establishes
that it is taking all practicable steps to meet the
requirements of subparagraph (B).
(D) Limitation.--A public water system may not receive an
exemption under this section if the system was granted a
variance under section 1415(e).
(3) Each public water system's exemption granted by a State
under subsection (a) shall be conditioned by the State upon
compliance by the public water system with the schedule
prescribed by the State pursuant to this subsection. The
requirements of each schedule prescribed by a State pursuant to
this subsection shall be enforceable by the State under its
laws. Any requirements of a schedule on which an exemption
granted under this section is conditioned may be enforced under
section 1414 as if such requirement was part of a national
primary drinking water regulation.
(4) Each schedule prescribed by a State pursuant to this
subsection shall be deemed approved by the Administrator unless
the exemption for which it was prescribed is revoked by the
Administrator under subsection (d)(2) or the schedule is
revised by the Administrator under such subsection.
(c) Each State which grants an exemption under subparagraph
(a) shall promptly notify the Administrator of the granting of
such exemption. Such notification shall contain the reasons for
the exemption (including the basis for the finding required by
subsection (a)(3) before the exemption may be granted) and
document the need for the exemption.
(d)(1) 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
exemptions granted (and schedules prescribed pursuant thereto)
by the States 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 each subsequent
review shall be completed within each 3-year period following
the completion of the first review under this subparagraph.
Before conducting any review under this subparagraph, the
Administrator shall publish notice of the proposed review in
the Federal Register. Such notice shall (A) provide information
respecting the location of data and other information
respecting the exemptions to be reviewed (including data and
other information concerning new scientific matter bearing on
such exemptions) and (B) advise of the opportunity to submit
comments on the 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 comments
submitted in connection with such review.
(2)(A) If the Administrator finds that a State has, in a
substantial number of instances, abused its discretion in
granting exemptions under subsection (a) or failed to prescribe
schedules is accordance with subsection (b), the Administrator
shall notify the State of his finding. In determining if a
State has abused its discretion in granting exemptions in a
substantial number of instances, the Administrator shall
consider the number of persons who are affected by the
exemptions and if the requirements applicable to the granting
of the exemptions were complied with. A notice under this
subparagraph shall--
(i) identify each exempt public water system with
respect to which the finding was made,
(ii) specify the reasons for the finding, and
(iii) as appropriate, propose revocations of specific
exemptions or propose revised schedules for specific
exempt public water systems, or both.
(B) The Administrator shall provide reasonable notice and
public hearing on the provisions of each notice given pursuant
to subparagraph (A). After a hearing on a notice pursuant to
subparagraph (A), the Administrator shall (i) rescind the
finding for which the notice was given and promptly notify the
State of such rescission, or (ii) promulgate (with such
modifications as he deems appropriate) such exemption
revocations and revised schedules proposed in such notice as he
deems appropriate. Not later than 180 days after the date a
notice is given pursuant to subparagraph (A), the Administrator
shall complete the hearing on the notice and take the action
required by the preceding sentence.
(C) If a State is notified under subparagraph (A) of a
finding of the Administrator made with respect to an exemption
granted a public water system within the State or to a schedule
prescribed pursuant to such an exemption and if before a
revocation of such exemptions or a revision of such schedules
promulgated by the Administrator takes effect the State takes
corrective action with respect to such exemption or schedule
which the Administrator determines makes his finding
inapplicable to such exemption or schedule, the Administrator
shall rescind the application of his finding to that exemption
or schedule. No exemption revocation or revised schedule may
take effect before the expiration of 90 days following the date
of the notice in which the revocation or revised schedule was
proposed.
(e) For purposes of this section, the term ``treatment
technique requirement'' means a requirement in a national
primary drinking water regulation which specifies for a
contaminant (in accordance with section 1401(C)(ii)) each
treatment technique known to the Administrator which leads to a
reduction in the level of such contaminant sufficient to
satisfy the requirements of section 1412(b).
(f) If a State does not have primary enforcement
responsibility for public water systems, the Administrator
shall have the same authority to exempt public water systems in
such State from maximum contaminant level requirements and
treatment technique requirements under the same conditions and
in the same manner as the State would be authorized to grant
exemptions under this section if it had primary enforcement
responsibility.
(g) If an application for an exemption under this section
is made, the State receiving the application of the
Administrator, as the case may be, shall act upon such
application within a reasonable period (as determined under
regulations prescribed by the Administrator) after the date of
its submission.
[sec. 1417. prohibition on use of lead pipes, solder and flux.]
prohibition on use of lead pipes, fittings, solder and flux
Sec. 1417. (a) In General._
[(1) Prohibition.--Any pipe, solder, or flux, which
is used after the enactment of the Safe Drinking Water
Act Amendments of 1986, in the installation or repair
of--
(A) any public water system, or
(B) any plumbing in a residential or
nonresidential facility providing water for
human consumption which is connected to a
public water system,
shall be lead free (within the meaning of subsection
(d)). This paragraph shall not apply to leaded joints
necessary for the repair of cast iron pipes.]
(1) Prohibitions._
(A) In general.--No person may use any pipe,
any pipe or plumbing fitting or fixture, any
solder, or any flux, after June 19, 1986, in
the installation or repair of--
(i) any public water system; or
(ii) any plumbing in a residential or
nonresidential facility providing water
for human consumption, that is not lead
free (within the meaning of subsection
(d)).
(B) Leaded joints.--Subparagraph (A) shall
not apply to leaded joints necessary for the
repair of cast iron pipes.
(2) Public notice requirements.--
(A) In general.--Each owner or operator of a
public water system shall identify and provide
notice to persons that may be affected by lead
contaminant of their drinking water where such
contaminant results from either or both of the
following:
(i) The lead content in the
construction materials of the public
water system distribution system.
(ii) Corrosivity of the water supply
sufficient to cause leaching of lead.
The notice shall be provided in such manner and
form as may be reasonably required by the
Administrator. Notice under this paragraph
shall be provided notwithstanding the absence
of a violation of any national drinking water
standard.
(B) Contents of notice.--Notice under this
paragraph shall provide a clear and readily
understandable explanation of--
(i) the potential sources of lead in
the drinking water,
(ii) potential adverse health
effects,
(iii) reasonably available methods of
mitigating known of potential lead
content in drinking water,
(iv) any steps the system is taking
to mitigate lead content in drinking
water, and
(v) the necessity for seeking
alternative water supplies, if any.
(3) Unlawful acts.--Effective 2 years after the date
of enactment of this paragraph, it shall be unlawful--
(A) for any person to introduce into commerce
any pipe, or any pipe or plumbing fitting or
fixture, that is not lead free, except for a
pipe that is used in manufacturing or
industrial processing;
(B) for any person engaged in the business of
selling plumbing supplies, except
manufacturers, to sell solder or flux that is
not lead free; or
(C) for any person to introduce into commerce
any solder or flux that is not lead free unless
the solder or flux bears a prominent label
stating that it is illegal to use the solder or
flux in the installation or repair of any
plumbing providing water for human consumption.
(b) State Enforcement.--
(1) Enforcement of prohibition.--The requirements of
subsection (a)(1) shall be enforced in all State
effective 24 months after the enactment of this
section. States shall enforce such requirements through
State or local plumbing codes, or such other means of
enforcement as the State may determine appropriate.
(2) Enforcement of public notice requirements.--The
requirements of subsection (a)(2) shall apply in all
States effective 24 months after the enactment of this
section.
(c) Penalties.--If the Administrator determines that a
State is not enforcing the requirements of subsection (a) as
required pursuant to subsection (b), the Administrator may
withhold up to 5 percent of Federal funds available to that
State for State program grants under section 1443(a).
(d) Definition of Lead Free.--For purpose of this section,
the term ``lead free''--
(1) when used with respect to solders and flux refers
to solders and flux containing not more than 0.2
percent [lead, and] lead;
(2) when used with respect to pipes and pipe fittings
refers to pipes and pipe fittings containing not more
than 8.0 percent [lead.] lead; and
(3) when used with respect to plumbing fittings and
fixtures, refers to plumbing fittings and fixtures in
compliance with standards established in accordance
with subsection (e).
(e) Plumbing Fittings and Fixtures._
(1) In general.--The Administrator shall provide
accurate and timely technical information and
assistance to qualified third-party certifiers in the
development of voluntary standards and testing
protocols for the leaching of lead from new plumbing
fittings and fixtures that are intended by the
manufacturer to dispense water for human ingestion.
(2) Standards._
(A) In general.--If a voluntary standard for
the leaching of lead is not established by the
date that is 1 year after the date of enactment
of this subsection, the Administrator shall,
not later than 2 years after the date of
enactment of this subsection, promulgate
regulations setting a health-effects-based
performance standard establishing maximum
leaching levels from new plumbing fittings and
fixtures that are intended by the manufacturer
to dispense water for human ingestion. The
standard shall become effective on the date
that is 5 years after the date of promulgation
of the standard.
(B) Alternative requirement.--If regulations
are required to be promulgated under
subparagraph (A) and have not been promulgated
by the date that is 5 years after the date of
enactment of this subsection, no person may
import, manufacture, process, or distribute in
commerce a new plumbing fitting or fixture,
intended by the manufacturer to dispense water
for human ingestion, that contains more than 4
percent lead by dry weight.
capacity development
Sec. 1418. (a) State Authority for New Systems.--Each State
shall obtain the legal authority or other means to ensure that
all new community water systems and new nontransient,
noncommunity water systems commencing operation after October
1, 1998, demonstrate technical, managerial, and financial
capacity with respect to each national primary drinking water
regulation in effect, or likely to be in effect, on the date of
commencement of operations.
(b) Systems in Significant Noncompliance._
(1) List.--Beginning not later than 1 year after the
date of enactment of this section, each State shall
prepare, periodically update, and submit to the
Administrator a list of community water systems and
nontransient, noncommunity water systems that have a
history of significant noncompliance with this title
(as defined in guidelines issued prior to the date of
enactment of this section or any revisions of the
guidelines that have been made in consultation with the
States) and, to the extent practicable, the reasons for
noncompliance.
(2) Report.--Not later than 5 years after the date of
enactment of this section and as part of the capacity
development strategy of the State, each State shall
report to the Administrator on the success of
enforcement mechanisms and initial capacity development
efforts in assisting the public water systems listed
under paragraph (1) to improve technical, managerial,
and financial capacity.
(c) Capacity Development Strategy._
(1) In general.--Not later than 4 years after the
date of enactment of this section, each State shall
develop and implement a strategy to assist public water
systems in acquiring and maintaining technical,
managerial, and financial capacity.
(2) Content.--In preparing the capacity development
strategy, the State shall consider, solicit public
comment on, and include as appropriate--
(A) the methods or criteria that the State
will use to identify and prioritize the public
water systems most in need of improving
technical, managerial, and financial capacity;
(B) a description of the institutional,
regulatory, financial, tax, or legal factors at
the Federal, State, or local level that
encourage or impair capacity development;
(C) a description of how the State will use
the authorities and resources of this title or
other means to--
(i) assist public water systems in
complying with national primary
drinking water regulations;
(ii) encourage the development of
partnerships between public water
systems to enhance the technical,
managerial, and financial capacity of
the systems; and
(iii) assist public water systems in
the training and certification of
operators;
(D) a description of how the State will
establish a baseline and measure improvements
in capacity with respect to national primary
drinking water regulations and State drinking
water law; and
(E) an identification of the persons that
have an interest in and are involved in the
development and implementation of the capacity
development strategy (including all appropriate
agencies of Federal, State, and local
governments, private and nonprofit public water
systems, and public water system customers).
(3) Report.--Not later than 2 years after the date on
which a State first adopts a capacity development
strategy under this subsection, and every 3 years
thereafter, the head of the State agency that has
primary responsibility to carry out this title in the
State shall submit to the Governor a report that shall
also be available to the public on the efficacy of the
strategy and progress made toward improving the
technical, managerial, and financial capacity of public
water systems in the State.
(d) Federal Assistance._
(1) In general.--The Administrator shall support the
States in developing capacity development strategies.
(2) Informational assistance._
(A) In general.--Not later than 180 days
after the date of enactment of this section,
the Administrator shall--
(i) conduct a review of State
capacity development efforts in
existence on the date of enactment of
this section and publish information to
assist States and public water systems
in capacity development efforts; and
(ii) initiate a partnership with
States, public water systems, and the
public to develop information for
States on recommended operator
certification requirements.
(B) Publication of information.--The
Administrator shall publish the information
developed through the partnership under
subparagraph (A)(ii) not later than 18 months
after the date of enactment of this section.
(3) Variances and exemptions.--Based on information
obtained under subsection (c)(2)(B), the Administrator
shall, as appropriate, modify regulations concerning
variances and exemptions for small public water systems
to ensure flexibility in the use of the variances and
exemptions. Nothing in this paragraph shall be
interpreted, construed, or applied to affect or alter
the requirements of section 1415 or 1416.
(4) Promulgation of drinking water regulations.--In
promulgating a national primary drinking water
regulation, the Administrator shall include an analysis
of the likely effect of compliance with the regulation
on the technical, financial, and managerial capacity of
public water systems.
(5) Guidance for new systems.--Not later than 2 years
after the date of enactment of this section, the
Administrator shall publish guidance developed in
consultation with the States describing legal
authorities and other means to ensure that all new
community water systems and new nontransient,
noncommunity water systems demonstrate technical,
managerial, and financial capacity with respect to
national primary drinking water regulations.
(e) Environmental Finance Centers._
(1) In general.--The Administrator shall support the
network of university-based Environmental Finance
Centers in providing training and technical assistance
to State and local officials in developing capacity of
public water systems.
(2) National capacity development clearinghouse.--
Within the Environmental Finance Center network in
existence on the date of enactment of this section, the
Administrator shall establish a national public water
systems capacity development clearinghouse to receive,
coordinate, and disseminate research and reports on
projects funded under this title and from other sources
with respect to developing, improving, and maintaining
technical, financial, and managerial capacity at public
water systems to Federal and State agencies,
universities, water suppliers, and other interested
persons.
(3) Capacity development techniques._
(A) In general.--The Environmental Finance
Centers shall develop and test managerial,
financial, and institutional techniques--
(i) to ensure that new public water
systems have the technical, managerial,
and financial capacity before
commencing operation;
(ii) to identify public water systems
in need of capacity development; and
(iii) to bring public water systems
with a history of significant
noncompliance with national primary
drinking water regulations into
compliance.
(B) Techniques.--The techniques may include
capacity assessment methodologies, manual and
computer-based public water system rate models
and capital planning models, public water
system consolidation procedures, and
regionalization models.
(f) Authorization of Appropriations.--There are authorized
to be appropriated to carry out subsection (e) $2,500,000 for
each of fiscal years 1995 through 2003.
source water quality protection partnership program
Sec. 419. (a) Source Water Area Delineations.--Except as
provided in subsection (c), not later than 5 years after the
date of enactment of this section, and after an opportunity for
public comment, each State shall--
(1) delineate (directly or through delegation) the
source water protection areas for community water
systems in the State using hydrogeologic information
considered to be reasonably available and appropriate
by the State; and
(2) conduct, to the extent practicable, vulnerability
assessments in source water areas determined to be a
priority by the State, including, to the extent
practicable, identification of risks in source water
protection areas to drinking water.
(b) Alternative Delineations and Vulnerability
Assessments.--For the purposes of satisfying the requirements
of subsection (a), a State may use delineations and
vulnerability assessments conducted for--
(1) ground water sources under a State wellhead
protection program developed pursuant to section 1428;
(2) surface or ground water sources under a State
pesticide management plan developed pursuant to the
Pesticide and Ground Water State Management Plan
Regulation (subparts I and J of part 152 of title 40,
Code of Federal Regulations), promulgated under section
3(d) of the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. 136a(d)); or
(3) surface water sources under a State watershed
initiative or to satisfy the watershed criterion for
determining if filtration is required under the Surface
Water Treatment Rule (section 141.70 of title 40, Code
of Federal Regulations).
(c) Funding.--To carry out the delineations and assessments
described in subsection (a), a State may use funds made
available for that purpose pursuant to section 1473(f). If
funds available under that section are insufficient to meet the
minimum requirements of subsection (a), the State shall
establish a priority-based schedule for the delineations and
assessments within available resources.
(d) Petition Program._
(1) In general._
(A) Establishment.--A State may establish a
program under which an owner or operator of a
community water system in the State, or a
municipal or local government or political
subdivision of a government in the State, may
submit a source water quality protection
partnership petition to the State requesting
that the State assist in the local development
of a voluntary, incentive-based partnership,
among the owner, operator, or government and
other persons likely to be affected by the
recommendations of the partnership, to--
(i) reduce the presence in drinking
water of contaminants that may be
addressed by a petition by considering
the origins of the contaminants,
including to the maximum extent
practicable the specific activities
that affect the drinking water supply
of a community;
(ii) obtain financial or technical
assistance necessary to facilitate
establishment of a partnership, or to
develop and implement recommendations
of a partnership for the protection of
source water to assist in the provision
of drinking water that complies with
national primary drinking water
regulations with respect to
contaminants addressed by a petition;
and
(iii) develop recommendations
regarding voluntary and incentive-based
strategies for the long-term protection
of the source water of community water
systems.
(B) State determination.--Not later than 1
year after the date of enactment of this
section, each State shall provide public notice
and solicit public comment on the question of
whether to develop a source water quality
protection partnership petition program in the
State, and publicly announce the determination
of the State thereafter. If so requested by any
public water system or local governmental
entity, prior to making the determination, the
State shall hold at least one public hearing to
assess the level of interest in the State for
development and implementation of a State
source water quality partnership petition
program.
(C) Funding.--Each State may--
(i) use funds set aside pursuant to
section 1473(f) by the State to carry
out a program described in subparagraph
(A), including assistance to voluntary
local partnerships for the development
and implementation of partnership
recommendations for the protection of
source water such as source water
quality assessment, contingency plans,
and demonstration projects for partners
within a source water area delineated
under subsection (a); and
(ii) provide assistance in response
to a petition submitted under this
subsection using funds referred to in
subsections (e)(2)(B) and (g).
(2) Objectives.--The objectives of a petition
submitted under this subsection shall be to--
(A) facilitate the local development of
voluntary, incentive-based partnerships among
owners and operators of community water
systems, governments, and other persons in
source water areas; and
(B) obtain assistance from the State in
directing or redirecting resources under
Federal or State water quality programs to
implement the recommendations of the
partnerships to address the origins of drinking
water contaminants that may be addressed by a
petition (including to the maximum extent
practicable the specific activities) that
affect the drinking water supply of a
community.
(3) Contaminants addressed by a petition.--A petition
submitted to a State under this section may address
only those contaminants--
(A) that are pathogenic organisms for which a
national primary drinking water regulation has
been established or is required under section
1412(b)(2)(C); or
(B) for which a national primary drinking
water regulation has been promulgated or
proposed and--
(i) that are detected in the
community water system for which the
petition is submitted at levels above
the maximum contaminant level; or
(ii) that are detected by adequate
monitoring methods at levels that are
not reliably and consistently below the
maximum contaminant level.
(4) Contents.--A petition submitted under this
subsection shall, at a minimum--
(A) include a delineation of the source water
area in the State that is the subject of the
petition;
(B) identify, to the maximum extent
practicable, the origins of the drinking water
contaminants that may be addressed by a
petition (including to the maximum extent
practicable the specific activities
contributing to the presence of the
contaminants) in the source water area
delineated under subparagraph (A);
(C) identify any deficiencies in information
that will impair the development of
recommendations by the voluntary local
partnership to address drinking water
contaminants that may be addressed by a
petition;
(D) specify the efforts made to establish the
voluntary local partnership and obtain the
participation of--
(i) the municipal or local government
or other political subdivision of the
State with jurisdiction over the source
water area delineated under
subparagraph (A); and
(ii) each person in the source water
area delineated under subparagraph
(A)--
(I) who is likely to be
affected by recommendations of
the voluntary local
partnership; and
(II) whose participation is
essential to the success of the
partnership;
(E) outline how the voluntary local
partnership has or will, during development and
implementation of recommendations of the
voluntary local partnership, identify,
recognize and take into account any voluntary
or other activities already being undertaken by
persons in the source water area delineated
under subparagraph (A) under Federal or State
law to reduce the likelihood that contaminants
will occur in drinking water at levels of
public health concern; and
(F) specify the technical, financial, or
other assistance that the voluntary local
partnership requests of the State to develop
the partnership or to implement recommendations
of the partnership.
(e) Approval or Disapproval of Petitions._
(1) In general.--After providing notice and an
opportunity for public comment on a petition submitted
under subsection (d), the State shall approve or
disapprove the petition, in whole or in part, not later
than 120 days after the date of submission of the
petition.
(2) Approval.--The State may approve a petition if
the petition meets the requirements established under
subsection (d). The notice of approval shall, at a
minimum, include--
(A) an identification of technical,
financial, or other assistance that the State
will provide to assist in addressing the
drinking water contaminants that may be
addressed by a petition based on--
(i) the relative priority of the
public health concern identified in the
petition with respect to the other
water quality needs identified by the
State;
(ii) any necessary coordination that
the State will perform of the program
established under this section with
programs implemented or planned by
other States under this section; and
(iii) funds available (including
funds available from a State revolving
loan fund established under title VI of
the Federal Water Pollution Control Act
(33 U.S.C. 1381 et seq.) or part G and
the appropriate distribution of the
funds to assist in implementing the
recommendations of the partnership;
(B) a description of technical or financial
assistance pursuant to Federal and State
programs that is available to assist in
implementing recommendations of the partnership
in the petition, including--
(i) any program established under the
Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.);
(ii) the program established under
section 6217 of the Coastal Zone Act
Reauthorization Amendments of 1990 (16
U.S.C. 1455b);
(iii) the agricultural water quality
protection program established under
chapter 2 of subtitle D of title XII of
the Food Security Act of 1985 (16
U.S.C. 3838 et seq.);
(iv) the sole source aquifer
protection program established under
section 1427;
(v) the community wellhead protection
program established under section 1428;
(vi) any pesticide or ground water
management plan;
(vii) any voluntary agricultural
resource management plan or voluntary
whole farm or whole ranch management
plan developed and implemented under a
process established by the Secretary of
Agriculture; and
(viii) any abandoned well closure
program; and
(C) a description of activities that will be
undertaken to coordinate Federal and State
programs to respond to the petition.
(3) Disapproval.--If the State disapproves a petition
submitted under subsection (d), the State shall notify
the entity submitting the petition in writing of the
reasons for disapproval. A petition may be resubmitted
at any time if--
(A) new information becomes available;
(B) conditions affecting the source water
that is the subject of the petition change; or
(C) modifications are made in the type of
assistance being requested.
(f) Eligibility for Water Quality Protection Assistance.--A
sole source aquifer plan developed under section 1427, a
wellhead protection plan developed under section 1428, and a
source water quality protection measure assisted in response to
a petition submitted under subsection (d) shall be eligible for
assistance under the Federal Water Pollution Control Act (33
U.S.C. 1251 et seq.), including assistance provided under
section 319 and title VI of such Act (33 U.S.C. 1329 and 1381
et seq.), if the project, measure, or practice would be
eligible for assistance under such Act. In the case of funds
made available under such section 319 to assist a source water
quality protection measure in response to a petition submitted
under subsection (d), the funds may be used only for a measure
that addresses nonpoint source pollution.
(g) Grants to Support State Programs._
(1) In general.--The Administrator may make a grant
to each State that establishes a program under this
section that is approved under paragraph (2). The
amount of each grant shall not exceed 50 percent of the
cost of administering the program for the year in which
the grant is available.
(2) Approval.--In order to receive grant assistance
under this subsection, a State shall submit to the
Administrator for approval a plan for a source water
quality protection partnership program that is
consistent with the guidance published under paragraph
(3). The Administrator shall approve the plan if the
plan is consistent with the guidance published under
paragraph (3).
(3) Guidance._
(A) In general.--Not later than 1 year after
the date of enactment of this section, the
Administrator, in consultation with the States,
shall publish guidance to assist--
(i) States in the development of a
source water quality protection
partnership program; and
(ii) municipal or local governments
or political subdivisions of the
governments and community water systems
in the development of source water
quality protection partnerships and in
the assessment of source water quality.
(B) Contents of the guidance.--The guidance
shall, at a minimum--
(i) recommend procedures for the
approval or disapproval by a State of a
petition submitted under subsection
(d);
(ii) recommend procedures for the
submission of petitions developed under
subsection (d);
(iii) recommend criteria for the
assessment of source water areas within
a State;
(iv) describe technical or financial
assistance pursuant to Federal and
State programs that is available to
address the contamination of sources of
drinking water and to develop and
respond to petitions submitted under
subsection (d); and
(v) specify actions taken by the
Administrator to ensure the
coordination of the programs referred
to in clause (iv) with the goals and
objectives of this title to the maximum
extent practicable.
(4) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection such sums as are necessary for fiscal years
1995 through 2003. Each State with a plan for a program
approved under paragraph (2) shall receive an equitable
portion of the funds available for any fiscal year.
(h) Statutory Construction.--Nothing in this section--
(1)(A) creates or conveys new authority to a State,
political subdivision of a State, or community water
system for any new regulatory measure; or
(B) limits any authority of a State,
political subdivision, or community water
system; or
(2) precludes a community water system, municipal or
local government, or political subdivision of a
government from locally developing and carrying out a
voluntary, incentive-based, source water quality
protection partnership to address the origins of
drinking water contaminants of public health concern.
Part C--Protection of Underground Sources of Drinking Water
regulations for state programs
Sec. 1421. (a)(1) The Administrator shall publish proposed
regulations for State underground injection control programs
within 180 days after the date of enactment of this title.
Within 180 days after publication of such proposed regulations,
he shall promulgate such regulations with such modifications as
he deems appropriate. Any regulation under this subsection may
be amended from time to time.
(2) Any regulation under this section shall be proposed and
promulgated in accordance with section 553 of title 5, United
States Code (relating to rulemaking), except that the
Administrator shall provide opportunity for public hearing
prior to promulgation of such regulations. In proposing and
promulgating regulations under this section, the Administrator
shall consult with the Secretary, the National Drinking Water
Advisory Council, and other appropriate Federal entities and
with interested State entities.
(b)(1) Regulations under subsection (a) for State
underground injection programs shall contain minimum
requirements for effective programs to prevent underground
injection which endangers drinking water sources within the
meaning of subsection (d)(2). Such regulations shall require
that a State program, in order to be approved under section
1422--
(A) shall prohibit, effective on the date on which
the applicable underground injection control program
takes effect, any underground injection in such State
which is not authorized by a permit issued by the State
(except that the regulations may permit a State to
authorize underground injection by rule);
(B) shall require (i) in the case of a program which
provides for authorization of underground injection by
permit, that the applicant for the permit to inject
must satisfy the State that the underground injection
will not endanger drinking water sources, and (ii) in
the case of a program which provides for such an
authorization by rule, that no rule may be promulgated
which authorizes any underground injection which
endangers drinking water sources;
(C) shall include inspection, monitoring,
recordkeeping, and reporting requirements; and
(D) shall apply (i) as prescribed by section 1447(b),
to underground injections by Federal agencies, and (ii)
to underground injections by any other person whether
or not occurring on property owned or leased by the
United States.
(2) Regulations of the Administrator under this section for
State underground injection control programs may not prescribe
requirements which interfere with or impede--
(A) the underground injection of brine or other
fluids which are brought to the surface in connection
with oil or natural gas production or natural gas
storage operations, or
(B) any underground injection for the secondary or
tertiary recovery of oil or natural gas, unless such
requirements are essential to assure that underground
sources of drinking water will not be endangered by
such injection.
(3)(A) The regulations of the Administrator under this
section shall permit or provide for consideration of varying
geologic, hydrological, or historical conditions in different
States and in different areas within a State.
(B)(i) In prescribing regulations under this section the
Administrator shall, to the extent feasible, avoid promulgation
of requirements which would unnecessarily disrupt State
underground injection control programs which are in effect and
being enforced in a substantial number of States.
(ii) For the purpose of this subparagraph, a regulation
prescribed by the Administrator under this section shall be
deemed to disrupt a State underground injection control program
only if it would be infeasible to comply with both such
regulation and the State underground injection control
programs.
(iii) For the purpose of this subparagraph, a regulation
prescribed by the Administrator under this section shall be
deemed unnecessary only if, without such regulation,
underground sources of drinking water will not be endangered by
any underground injection.
(C) Nothing in this section shall be construed to alter or
affect the duty to assure that underground sources of drinking
water will not be endangered by any underground injection.
(c)(1) The Administrator may, upon application of the
Governor of a State which authorizes underground injection by
means of permits, authorize such State to issue (without regard
to subsection (b)(1)(B)(i)) temporary permits for underground
injection which may be effective until the expiration of four
years after the date of enactment of this title, if--
(A) the Administrator finds that the State has
demonstrated that it is unable and could not reasonably
have been able to process all permit applications
within the time available;
(B) the Administrator determines the adverse effect
on the environment of such temporary permits is not
unwarranted;
(C) such temporary permits will be issued only with
respect to injection wells in operation on the date on
which such State's permit program approved under this
part first takes effect and for which there was
inadequate time to process its permit application; and
(D) the Administrator determines the temporary
permits require the use of adequate safeguards
established by rules adopted by him.
(2) The Administrator may, upon application of the Governor
of a State which authorizes underground injection by means of
permits, authorize such State to issue (without regard to
subsection (b)(i)(B)(i)), but after reasonable notice and
hearing, one or more temporary permits each of which is
applicable to a particular injection well and to the
underground injection of a particular fluid and which may be
effective until the expiration of four years after the date of
enactment of this title, if the State finds, on the record of
such hearing--
(A) that technology (or other means) to permit safe
injection of the fluid in accordance with the
applicable underground injection control program is not
generally available (taking costs into consideration);
(B) that injection of the fluid would be less harmful
to health than the use of other available means of
disposing of waste or producing the desired product;
and
(C) that available technology or other means have
been employed (and will be employed) to reduce the
volume and toxicity of the fluid and to minimize the
potentially adverse effect of the injection on the
public health.
(d) For purposes of this part:
(1) The term `underground injection' means
the subsurface emplacement of fluids by well
injection. Such term does not include the
underground injection of natural gas for
purposes of storage.
(2) Underground injection endangers drinking
water sources if such injection may result in
the presence in underground water which
supplies or can reasonably be expected to
supply any public water system of any
contaminant, and if the presence of such
contaminant may result in such system's not
complying with any national primary drinking
water regulation or may otherwise adversely
affect the health of persons.
state primary enforcement responsibility
Sec. 1422. (a) Within 180 days after the date of enactment
of this title, the Administrator shall list in the Federal
Register each State for which in his judgment a State
underground injection control program may be necessary to
assure that underground injection will not endanger drinking
water sources. Such list may be amended from time to time.
(b)(1)(A) Each State listed under subsection (a) shall
within 270 days after the date of promulgation of any
regulation under section 1421 (or, if later, within 270 days
after such State is first listed under subsection (a)) submit
to the Administrator an application which contains a showing
satisfactory to the Administrator that the State--
(i) has adopted after reasonable notice and
public hearings, and will implement, an
underground injection control program which
meets the requirements of regulations in effect
under section 1421; and
(ii) will keep such records and make such
reports with respect to its activities under
its underground injection control program as
the Administrator may require by regulation.
The Administrator may, for good cause, extend the date for
submission of an application by any State under this
subparagraph for a period not to exceed an additional 270 days.
(B) Within 270 days of any amendment of a regulation under
section 1421 revising or adding any requirement respecting
State underground injection control programs, each State listed
under subsection (a) shall submit (in such form and manner as
the Administrator may require) a notice to the Administrator
containing a showing satisfactory to him that the State
underground injection control program meets the revised or
added requirement.
(2) Within ninety days after the State's application under
paragraph (1)(A) or notice under paragraph (1)(B) and after
reasonable opportunity for presentation of views, the
Administrator shall by rule either approve, disapprove, or
approve in part and disapprove in part, the State's underground
injection control program.
(3) If the Administrator approves the State's program under
paragraph (2), the State shall have primary enforcement
responsibility for underground water sources until such time as
the Administrator determines, by rule, that such State no
longer meets the requirements of clause (i) or (ii) of
paragraph (1)(A) of this subsection.
(4) Before promulgating any rule under paragraph (2) or (3)
of this subsection, the Administrator shall provide opportunity
for public hearing respecting such rule.
(c) If the Administrator disapproves a State's program (or
part thereof) under subsection (b)(2), if the Administrator
determines under subsection (b)(3) that a State no longer meets
the requirements of clause (i) or (ii) of subsection (b)(1)(A),
or if a State fails to submit an application or notice before
the date of expiration of the period specified in subsection
(b)(1), the Administrator shall by regulation within 90 days
after the date of such disapproval, determination, or
expiration (as the case may be) prescribe (and may from time to
time by regulation revise) a program applicable to such State
meeting the requirements of section 1421(b). Such program may
not include requirements which interfere with or impede--
(1) the underground injection of brine or other
fluids which are brought to the surface in connection
with oil or natural gas production or natural gas
storage operations, or
(2) an underground injection for the secondary or
tertiary recovery of oil or natural gas,
unless such requirements are essential to assure that
underground sources of drinking water will not be endangered by
such injection. Such program shall apply in such State to the
extent that a program adopted by such State which the
Administrator determines meets such requirements is not in
effect. Before promulgating any regulation under this section,
the Administrator shall provide opportunity for public hearing
respecting such regulation.
(d) For purposes of this title, the term `applicable
underground injection control program' with respect to a State
means the program (or most recent amendment thereof) (1) which
has been adopted by the State and which has been approved under
subsection (b), or (2) which has been prescribed by the
Administrator under subsection (c)
(e) An Indian Tribe may assume primary enforcement
responsibility for underground injection control under this
section consistent with such regulations as the Administrator
has prescribed pursuant to Part C and section 1451 of this Act.
The area over which such Indian Tribe exercises governmental
jurisdiction need not have been listed under subsection (a) of
this section, and such Tribe need not submit an application to
assume primary enforcement responsibility within the 270-day
deadline noted in subsection (b)(1)(A) of this section. Until
an Indian Tribe assumes primary enforcement responsibility, the
currently applicable underground injection control program
shall continue to apply. If an applicable underground injection
control program does not exist for an Indian Tribe, the
Administrator shall prescribe such a program pursuant to
subsection (c) of this section, and consistent with section
1421(b), within 270 days after the enactment of the Safe
Drinking Water Act Amendments of 1986, unless an Indian Tribe
first obtains approval to assume primary enforcement
responsibility for underground injection control.
enforcement of program
Sec. 1423. (a)(1) Whenever the Administrator finds during a
period during which a State has primary enforcement
responsibility for underground water sources (within the
meaning of section 1422(b)(3) or section 1425(c)) that any
person who is subject to a requirement of an applicable
underground injection control program in such State is
violating such requirement, he shall so notify the State and
the person violating such requirement. If beyond the thirtieth
day after the Administrator's notification the State has not
commenced appropriate enforcement action, the Administrator
shall issue an order under subsection (c) requiring the person
to comply with such requirement or the Administrator shall
commence a civil action under subsection (b).
(2) Whenever the Administrator finds during a period during
which a State does not have primary enforcement responsibility
for underground water sources that any person subject to any
requirement of any applicable underground injection control
program in such State is violating such requirement, the
Administrator shall issue an order under subsection (c)
requiring the person to comply with such requirement or the
Administrator shall commence a civil action under subsection
(b).
(b) Civil and Criminal Actions.--Civil actions referred to
in paragraphs (1) and (2) of subsection (a) shall be brought in
the appropriate United States district court. Such court shall
have jurisdiction to require compliance with any requirement of
an applicable underground injection program or with an order
issued under subsection (c). The court may enter such judgment
as protection of public health may require. Any person who
violates any requirement of an applicable underground injection
control program or an order requiring compliance under
subsection (c)--
(1) shall be subject to a civil penalty of not more
than $25,000 for each day of such violation, and
(2) if such violation is willful, such person may, in
addition to or in lieu of the civil penalty authorized
by paragraph (1), be imprisoned for not more than 3
years, or fined in accordance with title 18 of the
United States Code, or both.
(c) Administrative Orders.--(1) In any case in which the
Administrator is authorized to bring a civil action under this
section with respect to any regulation or other requirement of
this part other than those relating to--
(A) the underground injection of brine or other
fluids which are brought to the surface in connection
with oil or natural gas production, or
(B) any underground injection for the secondary or
tertiary recovery of oil or natural gas,
the Administrator may also issue an order under this subsection
either assessing a civil penalty of not more than $10,000 for
each day of violation for any past or current violation, up to
a maximum administrative penalty of $125,000, or requiring
compliance with such regulation or other requirement, or both.
(2) In any case in which the Administrator is authorized to
bring a civil action under this section with respect to any
regulation, or other requirement of this part relating to--
(A) the underground injection of brine or other
fluids which are brought to the surface in connection
with oil or natural gas production, or
(B) any underground injection for the secondary or
tertiary recovery of oil or natural gas,
the Administrator may also issue an order under this subsection
either assessing a civil penalty of not more than $5,000 for
each day of violation for any past or current violation, up to
a maximum administrative penalty of $125,000, or requiring
compliance with such regulation or other requirement, or both.
(3)(A) An order under this subsection shall be issued by
the Administrator after opportunity (provided in accordance
with this sub-paragraph) for a hearing. Before issuing the
order, the Administrator shall give to the person to whom it is
directed written notice of the Administrator's proposal to
issue such order and the opportunity to request, within 30 days
of the date the notice is received by such person, a hearing on
the order. Such hearing shall not be subject to section 554 or
556 of title 5, United States Code, but shall provide a
reasonable opportunity to be heard and to present evidence.
(B) The Administrator shall provide public notice of, and
reasonable opportunity to comment on, any proposed order.
(C) Any citizen who comments on any proposed order under
subparagraph (B) shall be given notice of any hearing under
this subsection and of any order. In any hearing held under
subparagraph (A), such citizen shall have a reasonable
opportunity to be heard and to present evidence.
(D) Any order issued under this subsection shall become
effective 30 days following its issuance unless an appeal is
taken pursuant to paragraph (6).
(4)(A) Any order issued under this subsection shall state
with reasonable specificity the nature of the violation and may
specify a reasonable time for compliance.
(B) In assessing any civil penalty under this subsection,
the Administrator shall take into account appropriate factors,
including (i) the seriousness of the violation; (ii) the
economic benefit (if any) resulting from the violation; (iii)
any history of such violations; (iv) any good-faith efforts to
comply with the applicable requirements; (v) the economic
impact of the penalty on the violator; and (vi) such other
matters as justice may require.
(5) Any violation with respect to which the Administrator
has commenced and is diligently prosecuting an action, or has
issued an order under this subsection assessing a penalty,
shall not be subject to an action under subsection (b) of this
section or section 1424(c) or 1449, except that the foregoing
limitation on civil actions under section 1449 of this Act
shall not apply with respect to any violation for which--
(A) a civil action under section 1449(a)(1) has been
filed prior to commencement of an action under this
subsection, or
(B) a notice of violation under section 1449(b)(1)
has been given before commencement of an action under
this subsection and an action under section 1449(a)(1)
of this Act is filed before 120 days after such notice
is given.
(6) Any person against whom an order is issued or who
commented on a proposed order pursuant to paragraph (3) may
file an appeal of such order with the United States District
Court for the District of Columbia or the district in which the
violation is alleged to have occurred. Such an appeal may only
be filed within the 30-day period beginning on the date the
order is issued. Appellant shall simultaneously send a copy of
the appeal by certified mail to the Administrator and to the
Attorney General. The Administrator shall promptly file in such
court a certified copy of the record on which such order was
imposed. The district court shall not set aside or remand such
order unless there is not substantial evidence on the record,
taken as a whole, to support the finding of a violation or,
unless the Administrator's assessment of penalty or requirement
for compliance constitutes an abuse of discretion. The district
court shall not impose additional civil penalties for the same
violation unless the Administrator's assessment of a penalty
constitutes an abuse of discretion. Notwithstanding section
1448(a)(2), any order issued under paragraph (3) shall be
subject to judicial review exclusively under this paragraph.
(7) If any person fails to pay an assessment of a civil
penalty--
(A) after the order becomes effective under paragraph
(3), or
(B) after a court, in an action brought under
paragraph (6), has entered a final judgment in favor of
the Administrator,
the Administrator may request the Attorney General to bring a
civil action in an appropriate district court to recover the
amount assessed (plus costs, attorneys' fees, and interest at
currently prevailing rates from the date the order is effective
or the date of such final judgment, as the case may be). In
such an action, the validity, amount, and appropriateness of
such penalty shall not be subject to review.
(8) The Administrator may, in connection with
administrative proceedings under this subsection, issue
subpoenas compelling the attendance and testimony of witnesses
and subpoenas duces tecum, and may request the Attorney General
to bring an action to enforce any subpoena under this section.
The district courts shall have jurisdiction to enforce such
subpoenas and impose sanction.
(d) Nothing in this title shall diminish any authority of a
State or political subdivision to adopt or enforce any law or
regulation respecting underground injection but no such law or
regulation shall relieve any person of any requirement
otherwise applicable under this title.
interim regulation of underground injections
Sec. 1424. (a)(1) Any person may petition the Administrator
to have an area of a State (or States) designated as an area in
which no new underground injection well may be operated during
the period beginning on the date of the designation and ending
on the date on which the applicable underground injection
control program covering such area takes effect unless a permit
for the operation of such well has been issued by the
Administrator under subsection (b). The Administrator may so
designate an area within a State if he finds that the area has
one aquifer which is the sole or principal drinking water
source for the area and which, if contaminated, would create a
significant hazard to public health.
(2) Upon receipt of a petition under paragraph (1) of this
subsection, the Administrator shall publish it in the Federal
Register and shall provide an opportunity to interested persons
to submit written data, views, or arguments thereon. Not later
than the 30th day following the date of the publication of a
petition under this paragraph in the Federal Register, the
Administrator shall either make the designation for which the
petition is submitted or deny the petition.
(b)(1) During the period beginning on the date an area is
designated under subsection (a) and ending on the date the
applicable underground injection control program covering such
area takes effect, no new underground injection well may be
operated in such area unless the Administrator has issued a
permit for such operation.
(2) Any person may petition the Administrator for the
issuance of a permit for the operation of such a well in such
an area. A petition submitted under this paragraph shall be
submitted in such manner and contain such information as the
Administrator may require by regulation. Upon receipt of such a
petition, the Administrator shall publish it in the Federal
Register. The Administrator shall give notice of any proceeding
on a petition and shall provide opportunity for agency hearing.
The Administrator shall act upon such petition on the record of
any hearing held pursuant to the preceding sentence respecting
such petition. Within 120 days of the publication in the
Federal Register of a petition submitted under this paragraph,
the Administrator shall either issue the permit for which the
petition was submitted or shall deny its issuance.
(3) The Administrator may issue a permit for the operation
of a new underground injection well in an area designated under
subsection (a) only if he finds that the operation of such well
will not cause contamination of the aquifer of such area so as
to create a significant hazard to public health. The
Administrator may condition the issuance of such a permit upon
the use of such control measures in connection with the
operation of such well, for which the permit is to be issued,
as he deems necessary to assure that the operation of the well
will not contaminate the aquifer of the designated area in
which the well is located so as to create a significant hazard
to public health.
(c) Any person who operates a new underground injection
well in violation of subsection (b), (1) shall be subject to a
civil penalty of not more than $5,000 for each day in which
such violation occurs, or (2) if such violation is willful,
such person may, in lieu of the civil penalty authorized by
clause (1), be fined not more than $10,000 for each day in
which such violation occurs. If the Administrator has reason to
believe that any person is violating or will violate subsection
(b), he may petition the United States district court to issue
a temporary restraining order or injunction (including a
mandatory injunction) to enforce such subsection.
(d) For purposes of this section, the term `new underground
injection well' means an underground injection well whose
operation was not approved by appropriate State and Federal
agencies before the date of the enactment of this title.
(e) If the Administrator determines, on his own initiative
or upon petition, that an area has an aquifer which is the sole
or principal drinking water source for the area and which, if
contaminated, would create a significant hazard to public
health, he shall publish notice of that determination in the
Federal Register. After the publication of any such notice, no
commitment for Federal financial assistance (through a grant,
contract, loan guarantee, or otherwise) may be entered into for
any project which the Administrator determines may contaminate
such aquifer through a recharge zone so as to create a
significant hazard to public health, but a commitment for
Federal financial assistance may, if authorized under another
provision of law, be entered into to plan or design the project
to assure that it will not so contaminate the aquifer.
optional demonstration by states relating to oil or natural gas
Sec. 1425. (a) For purposes of the Administrator's approval
or disapproval under section 1422 of that portion of any State
underground injection control program which relates to--
(1) the underground injection of brine or other fluids
which are brought to the surface in connection with oil or
natural gas production or natural gas storage operations, or
(2) any underground injection for the secondary or tertiary
recovery of oil or natural gas. in lieu of the showing required
under subparagraph (A) of section 1422(b)(1) the State may
demonstrate that such portion of the State program meets the
requirements of subparagraphs (A) through (D) of section
1421(b)(1) and represents an effective program (including
adequate recordkeeping and reporting) to prevent underground
injection which endangers drinking water sources.
(b) If the Administrator revises or amends any requirement
of a regulation under section 1421 relating to any aspect of
the underground injection referred to in subsection (a), in the
case of that portion of a State underground injection control
program for which the demonstration referred to in subsection
(a) has been made, in lieu of the showing required under
section 1422(b)(1)(B) the State may demonstrate that, with
respect to that aspect of such underground injection, the State
program meets the requirements of sub-paragraphs (A) through
(D) of section 1421(b)(1) and represents an effective program
(including adequate recordkeeping and reporting) to prevent
underground injection which endangers drinking water sources.
(c)(1) Section 1422(b)(3) shall not apply to that portion
of any State underground injection control program approved by
the Administrator pursuant to a demonstration under subsection
(a) of this section (and under subsection (b) of this section
where applicable).
(2) If pursuant to such a demonstration, the Administrator
approves such portion of the State program, the State shall
have primary enforcement responsibility with respect to that
portion until such time as the Administrator determines, by
rule, that such demonstration is no longer valid. Following
such a determination, the Administrator may exercise the
authority of subsection (c) of section 1422 in the same manner
as provided in such subsection with respect to a determination
described in such subsection.
(3) Before promulgating any rule under paragraph (2), the
Administrator shall provide opportunity for public hearing
respecting such rule.
[sec. 1426. regulation of state programs.]
regulation of state programs
Sec. 1426. (a) Monitoring Methods.--Not later than 18
months after enactment of the Safe Drinking Water Act
Amendments of 1986, the Administrator shall modify regulations
issued under this Act for Class I injection wells to identify
monitoring methods, in addition to those in effect on November
1, 1985, including ground water monitoring. In accordance with
such regulations, the Administrator, or delegated State
authority, shall determine the applicability of such monitoring
methods, wherever appropriate, at locations and in such a
manner as to provide the earliest possible detection of fluid
migration into, or in the direction of underground sources of
drinking water from such wells, based on its assessment of the
potential for fluid migration from the injection zone that may
be harmful to human health or the environment. For purposes of
this subsection, a class I injection well is defined in
accordance with 40 CFR 146.05 as in effect on November 1, 1985.
(b) Report.--The Administrator shall submit a report to
Congress, no later than September 1987, summarizing the results
of State surveys required by the Administrator under this
section. The report shall include each of the following items
of information:
(1) The numbers and categories of class V wells which
discharge nonhazardous waste into or above an
underground source of drinking water.
(2) The primary contamination problems associated
with different categories of these disposal wells.
(3) Recommendations for minimum design, construction,
installation, and siting requirements that should be
applied to protect underground sources of drinking
water from such contamination wherever necessary.
[sec. 1427. sole source aquifer demonstration program.]
sole source aquifer demonstration program
Sec. 1427. (a) Purpose.--The purpose of this section is to
establish procedures for development, implementation, and
assessment of demonstration programs designed to protect
critical aquifer protection areas located within areas
designated as sole or principal source aquifers under section
1424(e) of this Act.
(b) Definition.--For purposes of this section, the term
`critical aquifer protection area' means either of the
following:
(1) All or part of an area located within an area for
which an application or designation as a sole or
principal source aquifer pursuant to section 1424(e),
has been submitted and approved by the Administrator
[not later than 24 months after the enactment of the
Safe Drinking Water Act Amendments of 1986] and which
satisfies the criteria established by the Administrator
under subsection (d).
(2) All or part of an area which is within an aquifer
designated as a sole source aquifer as of the enactment
of the Safe Drinking Water Act Amendments of 1986 and
for which an areawide ground water quality protection
plan has been approved under section 208 of the Clean
Water Act prior to such enactment.
(c) Application.--Any State, municipal or local government
or political subdivision thereof or any planning entity
(including any interstate regional planning entity) that
identifies a critical aquifer protection area over which it has
authority or jurisdiction may apply to the Administrator for
the selection of such area for a demonstration program under
this section. Any applicant shall consult with other government
or planning entities with authority or jurisdiction in such
area prior to application. Applicants, other than the Governor,
shall submit the application for a demonstration program
jointly with the Governor.
(d) Criteria.--Not later than 1 year after the enactment of
the Safe Drinking Water Act Amendments of 1986, the
Administrator shall, by rule, establish criteria for
identifying critical aquifer protection areas under this
section. In establishing such criteria, the Administrator shall
consider each of the following:
(1) The vulnerability of the aquifer to contamination
due to hydrogeologic characteristics.
(2) The number of persons or the proportion of
population using the ground water as a drinking water
source.
(3) The economic, social and environmental benefits
that would result to the area from maintenance of
ground water of high quality.
(4) The economic, social and environmental costs that
would result from degradation of the quality of the
ground water.
(e) Contents of Application.--An application submitted to
the Administrator by any applicant for a demonstration program
under this section shall meet each of the following
requirements:
(1) The application shall propose boundaries for the
critical aquifer protection area within its
jurisdiction.
(2) The application shall designate or, if necessary,
establish a planning entity (which shall be a public
agency and which shall include representation of
elected local and State governmental officials) to
develop a comprehensive management plan (hereinafter in
this section referred to as the ``plan'') for the
critical protection area. Where a local government
planning agency exists with adequate authority to carry
out this section with respect to any proposed critical
protection area, such agency shall be designated as the
planning entity.
(3) The application shall establish procedures for
public participation in the development of the plan,
for review, approval, and adoption of the plan, and for
assistance to municipalities and other public agencies
with authority under State law to implement the plan.
(4) The application shall include a hydrogeologic
assessment of surface and ground water resources within
the critical protection area.
(5) The application shall include a comprehensive
management plan for the proposed protection area.
(6) The application shall include the measures and
schedule proposed for implementation of such plan.
(f) Comprehensive Plan.--
(1) The objective of a comprehensive management plan
submitted by an applicant under this section shall be
to maintain the quality of the ground water in the
critical protection area in a manner reasonably
expected to protect human health, the environment and
ground water resources. In order to achieve such
objective, the plan may be designed to maintain, to the
maximum extent possible, the natural vegetative and
hydrogeological conditions. Each of the following
elements shall be included in such a protection plan:
(A) A map showing the detailed boundary of
the critical protection area.
(B) An identification of existing and
potential point and nonpoint sources of ground
water degradation.
(C) An assessment of the relationship between
activities on the land surface and ground water
quality.
(D) Specific actions and management practices
to be implemented in the critical protection
area to prevent adverse impacts on ground water
quality.
(E) Identification of authority adequate to
implement the plan, estimates of program costs,
and sources of State matching funds.
(2) Such plan may also include the following:
(A) A determination of the quality of the
existing ground water recharged through the
special protection area and the natural
recharge capabilities of the special protection
area watershed.
(B) Requirements designed to maintain
existing underground drinking water quality or
improve underground drinking water quality if
prevailing conditions fail to meet drinking
water standards, pursuant to the Act and State
law
(C) Limits on Federal, State, and local
government, financially assisted activities and
projects which may contribute to degradation of
such ground water or any loss of natural
surface and subsurface infiltration of
purification capability of the special
protection watershed.
(D) A comprehensive statement of land use
management including emergency contingency
planning as it pertains to the maintenance of
the quality of underground sources of drinking
water or to the improvement of such sources if
necessary to meet drinking water standards
pursuant to this Act and State law.
(E) Actions in the special protection area
which would avoid adverse impacts on water
quality, recharge capabilities, or both.
(F) Consideration of specific techniques,
which may include clustering, transfer of
development rights, and other innovative
measures sufficient to achieve the objectives
of this section.
(G) Consideration of the establishment of a
State institution to facilitate and assist
funding a development transfer credit system.
(H) A program for State and local
implementation of the plan described in this
subsection in a manner that will insure the
continued, uniform, consistent protection of
the critical protection area in accord with the
purposes of this section.
(I) Pollution abatement measures, if
appropriate.
(g) Plans Under Section 208 of the Clean Water Act.--A plan
approved before the enactment of the Safe Drinking Water Act
Amendments of 1986 under section 208 of the Clean Water Act to
protect a sole source aquifer designated under section 1424(e)
of this Act shall be considered a comprehensive management plan
for the purposes of this section.
(h) Consultation and Hearings.--During the development of a
comprehensive management plan under this section, the planning
entity shall consult with, and consider the comments of,
appropriate officials of any municipality and State or Federal
agency which has jurisdiction over lands and waters within the
special protection area, other concerned organizations and
technical and citizen advisory committees. The planning entity
shall conduct public hearings at places within the special
protection area for the purpose of providing the opportunity to
comment on any aspect of the plan.
(i) Approval or Disapproval.--Within 120 days after receipt
of an application under this section, the Administrator shall
approve or disapprove the application. The approval or
disapproval shall be based on a determination that the critical
protection area satisfies the criteria established under
subsection (d) and that a demonstration program for the area
would provide protection for ground water quality consistent
with the objectives stated in subsection (f). The Administrator
shall provide to the Governor a written explanation of the
reasons for the disapproval of any such application. Any
petitioner may modify and resubmit any application which is not
approved. Upon approval of an application, the Administrator
may enter into a cooperative agreement with the applicant to
establish a demonstration program under this section.
(j) Grants and Reimbursements.--Upon entering a cooperative
agreement under subsection (i), the Administrator may provide
to the applicant, on a matching basis, a grant of 50 per centum
of the costs of implementing the plan established under this
section. The Administrator may also reimburse the applicant of
an approved plan up to 50 per centum of the costs of developing
such plan, except for plans approved under section 208 of the
Clean Water Act. The total amount of grants under this section
for any one aquifer, designated under section 1424(e), shall
not exceed $4,000,000 in any one fiscal year.
(k) Activities Funded Under Other Law.--No funds authorized
under this subsection may be used to fund activities funded
under other sections of this Act or the Clean Water Act, the
Solid Waste Disposal Act, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 or other
environmental laws.
(l) Report.--Not later than December 31, 1989, each State
shall submit to the Administrator a report assessing the impact
of the program on ground water quality and identifying those
measures found to be effective in protecting ground water
resources. No later than September 30, 1990, the Administrator
shall submit to Congress a report summarizing the State
reports, and assessing the accomplishments of the sole source
aquifer demonstration program including an identification of
protection methods found to be most effective and
recommendations for their application to protect ground water
resources from contamination whenever necessary.
(m) Savings Provision.--Nothing under this section shall be
construed to amend, supersede or abrogate rights to quantities
of water which have been established by interstate water
compacts, Supreme Court decrees, or State water laws, or any
requirement imposed or right provided under any Federal or
State environmental or public health statute.
(n) Authorization.--There are authorized to be appropriated
to carry out this section not more than the following amounts:
Fiscal year Amount
1987.........................................................$10,000,000
1988..........................................................15,000,000
1989..........................................................17,500,000
1990..........................................................17,500,000
1991..........................................................17,500,000
1992--2003....................................................20,000,000
Matching grants under this section may also be used to
implement or update any water quality management plan for a
sole or principal source aquifer approved (before the date of
the enactment of this section) by the Administrator under
section 208 of the Federal Water Pollution Control Act.
[sec. 1428. state programs to establish wellhead protection areas.]
state programs to establish wellhead protection areas
Sec. 1428. (a) State Programs.--The Governor or Governor's
designee of each State shall, within 3 years of the date of
enactment of the Safe Drinking Water Act Amendments of 1986,
adopt and submit to the Administrator a State program to
protect wellhead areas within their jurisdiction from
contaminants which may have any adverse effect on the health of
persons. Each State program under this section shall, at a
minimum--
(1) specify the duties of State agencies, local
governmental entities, and public water supply systems with
respect to the development and implementation of programs
required by this section;
(2) for each wellhead, determine the wellhead protection
area as defined in subsection (e) based on all reasonably
available hydrogeologic information on ground water flow,
recharge and discharge and other information the State deems
necessary to adequately determine the wellhead protection area;
(3) identify within each wellhead protection area all
potential anthropogenic sources of contaminants which may have
any adverse effect on the health of persons;
(4) describe a program that contains, as appropriate,
technical assistance, financial assistance, implementation of
control measures, education, training, and demonstration
projects to protect the water supply within wellhead protection
areas from such contaminants;
(5) include contingency plans for the location and
provision of alternate drinking water supplies for each public
water system in the event of well or wellfield contamination by
such contaminants; and
(6) include a requirement that consideration be given to
all potential sources of such contaminants within the expected
wellhead area of a new water well which serves a public water
supply system.
(b) Public Participation.--To the maximum extent possible,
each State shall establish procedures, including but not
limited to the establishment of technical and citizens'
advisory committees, to encourage the public to participate in
developing the protection program for wellhead areas. Such
procedures shall include notice and opportunity for public
hearing on the State program before it is submitted to the
Administrator.
(c) Disapproval.--
(1) In General.--If, in the judgment of the
Administrator, a State program (or portion thereof,
including the definition of a wellhead protection area)
is not adequate to protect public water systems as
required by this section, the Administrator shall
disapprove such program (or portion thereof). A State
program developed pursuant to subsection (a) shall be
deemed to be adequate unless the Administrator
determines, within 9 months of the receipt of a State
program, that such program (or portion thereof) is
inadequate for the purpose of protecting public water
systems as required by this section from contaminants
that may have any adverse effect on the health of
persons. If the Administrator determines that a
proposed State program (or any portion thereof) is
inadequate, the Administrator shall submit a written
statement of the reasons for such determination of the
Governor of the State.
(2) Modification and Resubmission.--Within 6 months
after receipt of the Administrator's written notice
under paragraph (1) that any proposed State program (or
portion thereof) is inadequate, the Governor or
Governor's designee, shall modify the program based
upon the recommendations of the Administrator and
resubmit the modified program to the Administrator.
(d) Federal Assistance.--After the date 3 years after the
enactment of this section, no State shall receive funds
authorized to be appropriated under this section except for the
purpose of implementing the program and requirements of
paragraphs (4) and (6) of subsection (a).
(e) Definition of Wellhead Protection Area.--As used in
this section, the term `wellhead protection area' means the
surface and subsurface area surrounding a water well or
wellfield, supplying a public water system, through which
contaminants are reasonably likely to move toward and reach
such water well or wellfield. The extent of a wellhead
protection area, within a State, necessary to provide
protection from contaminants which may have any adverse effect
on the health of persons is to be determined by the State in
the program submitted under subsection (a). Not later than one
year after the enactment of the Safe Drinking Water Act
Amendments of 1986, the Administrator shall issue technical
guidance which States may use in making such determinations.
Such guidance may reflect such factors as the radius of
influence around a well or wellfield, the depth of drawdown of
the water table by such well or wellfield at any given point,
the time or rate of travel of various contaminants in various
hydrologic conditions, distance from the well or wellfield, or
other factors affecting the likelihood of contaminants reaching
the well or wellfield, taking into account available
engineering pump tests or comparable data, field
reconnaissance, topographic information, and the geology of the
formation in which the well or wellfield is located.
(f) Prohibitions.--
(1) Activities Under Other Laws.--No funds authorized
to be appropriated under this section may be used to
support activities authorized by the Federal Water
Pollution Control Act, the Solid Waste Disposal Act,
the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, or other sections of this
Act.
(2) Individual Sources.--No funds authorized to be
appropriated under this section may be used to bring
individual sources of contamination into compliance.
(g) Implementation.--Each State shall make every reasonable
effort to implement the State wellhead area protection program
under this section within 2 years of submitting the program to
the Administrator. Each State shall submit to the Administrator
a biennial status report describing the State's progress in
implementing the program. Such report shall include amendments
to the State program for water wells sited during the biennial
period.
(h) Federal Agencies.--Each department, agency, and
instrumentality of the executive, legislative, and judicial
branches of the Federal Government having jurisdiction over any
potential source of contaminants identified by a State program
pursuant to the provisions of subsection (a)(3) shall be
subject to and comply with all requirements of the State
program developed according to subsection (a)(4) applicable to
such potential source of contaminants, both substantive and
procedural, in the same manner, and to the same extent, as any
other person is subject to such requirements, including payment
of reasonable charges and fees. The President may exempt any
potential source under the jurisdiction of any department,
agency, or instrumentality in the executive branch if the
President determines it to be in the paramount interest of the
United States to do so. No such exemption shall be granted due
to the lack of an appropriation unless the President shall have
specifically requested such appropriation as part of the
budgetary process and the Congress shall have failed to make
available such requested appropriations.
(i) Additional Requirement.--
(1) In General.--In addition to the provisions of
subsection (a) of this section, States in which there
are more than 2,500 active wells at which annular
injection is used as of January 1, 1986, shall include
in their State program a certification that a State
program exists and is being adequately enforced that
provides protection from contaminants which may have
any adverse effect on the health of persons and which
are associated with the annular injection or surface
disposal of brines associated with oil and gas
production
(2) Definition.--For purposes of this subsection, the
term `annular injection' means the reinjection of
brines associated with the production of oil or gas
between the production and surface casings of a
conventional oil or gas producing well.
(3) Review.--The Administrator shall conduct a review
of each program certified under this subsection.
(4) Disapproval.--If a State fails to include the
certification required by this subsection or if in the
judgment of the Administrator the State program
certified under this subsection is not being adequately
enforced, the Administrator shall disapprove the State
program submitted under subsection (a) of this section.
(j) Coordination with Other Laws.--Nothing in this
section shall authorize or require any department,
agency, or other instrumentality of the Federal
Government or State or local government to apportion,
allocate or otherwise regulate the withdrawal or
beneficial use of ground or surface waters, so as to
abrogate or modify any existing rights to water
established pursuant to State or Federal law, including
interstate compacts.
(k) Authorization of Appropriations.--Unless the
State program is disapproved under this section, the
Administrator shall make grants to the State for not
less than 50 or more than 90 percent of the cost
incurred by a State (as determined by the
Administrator) in developing and implementing each
State program under this section. For purposes of
making such grants there is authorized to be
appropriated not more than the following amounts:
Fiscal year Amount
1987.........................................................$20,000,000
1988..........................................................20,000,000
1989..........................................................35,000,000
1990..........................................................35,000,000
1991..........................................................35,000,000
1992--2003....................................................35,000,000
Part D--Emergency Powers
emergency powers
Sec. 1431. (a) Notwithstanding any other provision of this
title, the Administrator, upon receipt of information that a
contaminant which is present in or is likely to enter a public
water system or an underground source of drinking water may
present an imminent and substantial endangerment to the health
of persons, and that appropriate State and local authorities
have not acted to protect the health of such persons, may take
such actions as he may deem necessary in order to protect the
health of such persons. To the extent he determines it to be
practicable in light of such imminent endangerment, he shall
consult with the State and local authorities in order to
confirm the correctness of the information on which action
proposed to be taken under this subsection is based and to
ascertain the action which such authorities are or will be
taking. The action which the Administrator may take may include
(but shall not be limited to) (1) issuing such orders as may be
necessary to protect the health of persons who are or may be
users of such system (including travelers), including orders
requiring the provision of alternative water supplies by
persons who caused or contributed to the endangerment, and (2)
commencing a civil action for appropriate relief, including a
restraining order or permanent or temporary injunction.
(b) Any person who violates or fails or refuses to comply
with any order issued by the Administrator under subsection
(a)(l) may, in an action brought in the appropriate United
States district court to enforce such order, be subject to a
civil penalty of not to exceed $5,000 for each day in which
such violation occurs or failure to comply continues.
[sec. 1432. tampering with public water systems.]
tampering with public water systems
Sec. 1432. (a) Tampering.--Any person who tampers with a
public water system shall be imprisoned for not more than 5
years, or fined in accordance with title 18 of the United
States Code, or both.
(b) Attempt or Threat.--Any person who attempts to tamper,
or makes a threat to tamper, with a public drinking water
system be imprisoned for not more than 3 years, or fined in
accordance with title 18 of the United States Code, or both.
(c) Civil Penalty.--The Administrator may bring a civil
action in the appropriate United States district court (as
determined under the provisions of title 28 of the United
States Code) against any person who tampers, attempts to
tamper, or makes a threat to tamper with a public water system.
The court may impose on such person a civil penalty of not more
than $50,000 for such tampering or not more than $20,000 for
such attempt or threat.
(d) Definition of `Tamper'.--For purposes of this section,
the term `tamper, means--
(1) to introduce a contaminant into a public water
system with the intention of harming persons; or
(2) to otherwise interfere with the operation of a
public water system with the intention of harming
persons.
Part E--General Provisions
assurance of availability of adequate supplies of chemicals necessary
for treatment of water
Sec. 1441. (a) If any person who uses chlorine, activated
carbon, lime, ammonia, soda ash, potassium permanganate,
caustic soda, or other chemical or substance for the purpose of
treating water in any public water system or in any public
treatment works determines that the amount of such chemical or
substance necessary to effectively treat such water is not
reasonably available to him or will not be so available to him
when required for the effective treatment of such water, such
person may apply to the Administrator for a certification
(hereinafter in this section referred to as a ``certification
of need'') that the amount of such chemical or substance which
such person requires to effectively treat such water is not
reasonably available to him or will not be so available when
required for the effective treatment of such water.
(b)(1) An application for a certification of need shall be
in such form and submitted in such manner as the Administrator
may require and shall (A) specify the persons the applicant
determines are able to provide the chemical or substance with
respect to which the application is submitted, (B) specify the
persons from whom the applicant has sought such chemical or
substance, and (C) contain such other information as the
Administrator may require.
(2) Upon receipt of an application under this section, the
Administrator shall (A) publish in the Federal Register a
notice of the receipt of the application and a brief summary of
it, (B) notify in writing each person whom the President or his
delegate (after consultation with the Administrator) determines
could be made subject to an order required to be issued upon
the issuance of the certification of need applied for in such
application, and (C) provide an opportunity for the submission
of written comments on such application. The requirements of
the preceding sentence of this paragraph shall not apply when
the Administrator for good cause finds (and incorporates the
finding with a brief statement of reasons therefor in the order
issued) that waiver of such requirements is necessary in order
to protect the public health.
(3) Within 30 days after--
(A) the date a notice is published under paragraph
(2) in the Federal Register with respect to an
application submitted under this section for the
issuance of a certification of need, or
(B) the date on which such application is received if
as authorized by the second sentence of such paragraph
no notice is published with respect to such
application,
the Administrator shall take action either to issue or deny the
issuance of a certification of need.
(c)(1) If the Administrator finds that the amount of a
chemical or substance necessary for an applicant under an
application submitted under this section to effectively treat
water in a public water system or in a public treatment works
is not reasonably available to the applicant or will not be so
available to him when required for the effective treatment of
such water, the Administrator shall issue a certification of
need. Not later than seven days following the issuance of such
certification, the President or his delegate shall issue an
order requiring the provision to such person of such amounts of
such chemical or substance as the Administrator deems necessary
in the certification of need issued for such person. Such order
shall apply to such manufacturers, producers, processors,
distributors, and repackagers of such chemical or substance as
the President or his delegate deems necessary and appropriate,
except that such order may not apply to any manufacturer,
producer, or processor of such chemical or substance who
manufactures, produces, or processes (as the case may be) such
chemical or substance solely for its own use. Persons subject
to an order issued under this section shall be given a
reasonable opportunity to consult with the President or his
delegate with respect to the implementation of the order.
(2) Orders which are to be issued under paragraph (1) to
manufacturers, producers, and processors of a chemical or
substance shall be equitably apportioned, as far as
practicable, among all manufacturers, producers, and processors
of such chemical or substance; and orders which are to be
issued under paragraph (1) to distributors and repackagers of a
chemical or substance shall be equitably apportioned, as far as
practicable, among all distributors and repackagers of such
chemical or substance. In apportioning orders issued under
paragraph (1) to manufacturers, producers, processors,
distributors, and repackagers of chlorine, the President or his
delegate shall, in carrying out the requirements of the
preceding sentence, consider--
(A) the geographical relationship and established
commercial relationships between such manufacturers, producers,
processors, distributors, and repackagers and the persons for
whom the orders are issued;
(B) in the case of orders to be issued to producers of
chlorine, the (i) amount of chlorine historically supplied by
each such producer to treat water in public water systems and
public treatment works, and (ii) share of each such producer of
the total annual production of chlorine in the United States;
and
(C) such other factors as the President or his delegate may
determine are relevant to the apportionment of orders in
accordance with the requirements of the preceding sentence.
(3) Subject to subsection (f), any person for whom a
certification of need has been issued under this subsection may
upon the expiration of the order issued under paragraph (1)
upon such certification apply under this section for additional
certifications.
(d) There shall be available as a defense to any action
brought for breach of contract in a Federal or State court
arising out of delay or failure to provide, sell, or offer for
sale or exchange a chemical or substance subject to an order
issued pursuant to subsection (c)(1), that such delay or
failure was caused solely by compliance with such order.
(e)(1) Whoever knowingly fails to comply with any order
issued pursuant to subsection (c)(1) shall be fined not more
than $5,000 for each such failure to comply.
(2) Whoever fails to comply with any order issued pursuant
to subsection (c)(1) shall be subject to a civil penalty of not
more than $2,500 for each such failure to comply.
(3) Whenever the Administrator or the President or his
delegate has reason to believe that any person is violating or
will violate any order issued pursuant to subsection (c)(1), he
may petition a United States district court to issue a
temporary restraining order or preliminary or permanent
injunction (including a mandatory injunction) to enforce the
provisions of such order.
(f) No certification of need or order issued under this
section may remain in effect more than one year.
research, technical assistance, information and training of personnel
Sec. 1442. (a)(1) The Administrator may conduct research,
studies, and demonstrations relating to the causes, diagnosis,
treatment, control, and prevention of physical and mental
diseases and other impairments of man resulting directly or
indirectly from contaminants in water, or to the provision of a
dependably safe supply of drinking water, including--
(A) improved methods (i) to identify and measure the
existence of contaminants in drinking water (including methods
which may be used by State and local health and water
officials), and (ii) to identify the source of such
contaminants;
(B) improved methods to identify and measure the health
effects of contaminants in drinking water;
(C) new methods of treating raw water to prepare it for
drinking, so as to improve the efficiency of water treatment
and to remove contaminants from water;
(D) improved methods for providing a dependably safe supply
of drinking water, including improvements in water purification
and distribution, and methods of assessing health related
hazards of drinking water; and
(E) improved methods of protecting underground water
sources of public water systems from contamination.
[(2)(A) The Administrator shall, to the maximum extent
feasible, provide technical assistance to the States and
municipalities in the establishment and administration of
public water system supervision programs (as defined in section
1443(c)(1)).]
(2) Information and research facilities.--In carrying out
this title, the Administrator is authorized to--
(A) collect and make available information pertaining
to research, investigations, and demonstrations with
respect to providing a dependably safe supply of
drinking water, together with appropriate
recommendations in connection with the information; and
(B) make available research facilities of the Agency
to appropriate public authorities, institutions, and
individuals engaged in studies and research relating to
this title.
[(3)(A) The Administrator shall conduct studies, and make
periodic reports to Congress, on the costs of carrying out
regulations prescribed under section 1412.
(B) Not later than eighteen months after the date of
enactment of this subparagraph, the Administrator shall submit
a report to Congress which identifies and analyzes--
(i) the anticipated costs of compliance with interim
and revised national primary drinking water regulations
and the anticipated costs to States and units of local
governments in implementing such regulations;
(ii) alternative methods of (including alternative
treatment techniques for) compliance with such
regulations;
(iii) methods of paying the costs of compliance by
public water systems with national primary drinking
water regulations, including user charges, State or
local taxes or subsidies, Federal grants (including
planning or construction grants, or both), loans, and
loan guarantees, and other methods of assisting in
paying the costs of such compliance;
(iv) the advantages and disadvantages of each of the
methods referred to in clauses (ii) and (iii);
(v) the sources of revenue presently available (and
projected to be available) to public water systems to
meet current and future expenses; and
(vi) the costs of drinking water paid by residential
and industrial consumers in a sample of large, medium,
and small public water systems and of individually
owned wells, and the reasons for any differences in
such costs.
The report required by this subparagraph shall identify and
analyze the items required in clauses (i) through (v)
separately with respect to public water systems serving small
communities. The report required by this subparagraph shall
include such recommendations as the Administrator deems
appropriate.]
[(11)] (3) The Administrator shall carry out a study of
polychlorinated biphenyl contamination of actual or potential
sources of drinking water, contamination of such sources by
other substances known or suspected to be harmful to public
health, the effects of such contamination, and means of
removing, treating, or otherwise controlling such
contamination. To assist in carrying out this paragraph, the
Administrator is authorized to make grants to public agencies
and private nonprofit institutions.
(4) The Administrator shall conduct a survey and study of--
(A) disposal of waste (including residential waste)
which may endanger underground water which supplies, or
can reasonably be expected to supply, any public water
systems, and
(B) means of control of such waste disposal.
Not later than one year after the date of enactment of this
title, he shall transmit to the Congress the results of such
survey and study, together with such recommendations as he
deems appropriate.
(5) The Administrator shall carry out a study of methods of
underground injection which do not result in the degradation of
underground drinking water sources.
(6) The Administrator shall carry out a study of methods of
preventing, detecting, and dealing with surface spills of
contaminants which may degrade underground water sources for
public water systems.
(7) The Administrator shall carry out a study of virus
contamination of drinking water sources and means of control of
such contamination.
(8) The Administrator shall carry out a study of the nature
and extent of the impact on underground water which supplies or
can reasonably be expected to supply public water systems of
(A) abandoned injection or extraction wells; (B) intensive
application of pesticides and fertilizers in underground water
recharge areas; and (C) ponds, pools, lagoons, pits, or other
surface disposal of contaminants in underground water recharge
areas.
(9) The Administrator shall conduct a comprehensive study
of public water supplies and drinking water sources to
determine the nature, extent, sources of and means of control
of contamination by chemicals or other substances suspected of
being carcinogenic. Not later than six months after the date of
enactment of this title, he shall transmit to the Congress the
initial results of such study, together with such
recommendations for further review and corrective action as he
deems appropriate.
(10) The Administrator shall carry out a study of the
reaction of chlorine and humic acids and the effects of the
contaminants which result from such reaction on public health
and on the safety of drinking water, including any carcinogenic
effect.
(11) Authorization of appropriations.--There are authorized
to be appropriated to the Administrator to carry out research
authorized by this section $25,000,000 for each of fiscal years
1994 through 2003, of which $4,000,000 shall be available for
each fiscal year for research on the health effects of arsenic
in drinking water.
[(b) In carrying out this title, the Administrator is
authorized to--
(1) collect and make available information pertaining
to research, investigations, and demonstrations with
respect to providing a dependably safe supply of
drinking water together with appropriate
recommendations in connection therewith;
(2) make available research facilities of the Agency
to appropriate public authorities, institutions, and
individuals engaged in studies and research relating to
the purposes of this title;]
[(B)] (b) The Administrator is authorized to provide
technical assistance and to make grants to States, or publicly
owned water systems to assist in responding to and alleviating
any emergency situation affecting public water systems
(including sources of water for such systems) with the
Administrator determines to present substantial danger to the
public health. Grants provided under this [subparagraph]
subsection shall be used only to support those actions which
(i) are necessary for preventing, limiting or mitigating danger
to the public health in such emergency situation and (ii) would
not, in the judgment of the Administrator, be taken without
such emergency assistance. The Administrator may carry out the
program authorized under this [subparagraph] subsection as part
of, and in accordance with the terms and conditions of, any
other program of assistance for environmental emergencies which
the Administrator is authorized to carry out under any other
provision of law. No limitation on appropriations for any such
other program shall apply to amounts appropriated under this
[subparagraph] subsection. There are authorized to be
appropriated to carry out this subsection $8,000,000 for each
of fiscal years 1995 through 2003.
(c) Not later than [eighteen months after the date of
enactment of this subsection] 2 years after the date of
enactment of the Safe Drinking Water Act Amendments of 1995,
and every 5 years thereafter, the Administrator shall submit a
report to Congress on the present and projected future
availability of an adequate and dependable supply of safe
drinking water to meet present and projected future need. Such
report shall include an analysis of the future demand for
drinking water and other competing uses of water, the
availability and use of methods to conserve water or reduce
demand, the adequacy of present measures to assure adequate and
dependable supplies of safe drinking water, and the problems
(financial, legal, or other) which need to be resolved in order
to assure the availability of such supplies for the future.
Existing information and data compiled by the National Water
Commission and others shall be utilized to the extent possible.
(d) The Administrator shall--
(1) provide training for, and make grants for
training (including postgraduate training) of (A)
personnel of State agencies which have primary
enforcement responsibility and of agencies or units of
local government to which enforcement responsibilities
have been delegated by the State, and (B) personnel who
manage or operate public water systems[, and];
(2) make grants for postgraduate training of
individuals (including grants to educational
institutions for traineeships) for purposes of
qualifying such individuals to work as personnel
referred to in paragraph (1)[.];
(3) make grants to, and enter into contracts with,
any public agency, educational institution, and any
other organization, in accordance with procedures
prescribed by the Administrator, under which he may pay
all or a part of the costs (as may be determined by the
Administrator) of any project or activity which is
designed--
(A) to develop, expand, or carry out a
program (which may combine training education
and employment) for training persons for
occupations involving the public health aspects
of providing safe drinking water;
(B) to train inspectors and supervisory
personnel to train or supervise persons in
occupations involving the public health aspects
of providing safe drinking water; or
(C) to develop and expand the capability of
programs of State and municipalities to carry
out the purposes of this title (other than by
carrying out State programs of public water
system supervision or underground water source
protection (as defined in section 1443(c)))[.];
(4) develop and maintain a system for forecasting the
supply of, and demand for, various professional
occupational categories and other occupational
categories needed for the protection and treatment of
drinking water in each region of the United States.
Reasonable fees may be charged for training provided under
paragraph (1)(B) to persons other than personnel of State or
local agencies but such training shall be provided to personnel
of State or local agencies without charge. There are authorized
to be appropriated to carry out this subsection $10,000,000 for
each of fiscal years 1994 through 2003.
(e) Certification of Operators and Laboratories._
(1) Requirement.--Beginning 3 years after the date of
enactment of the Safe Drinking Water Act Amendments of
1995--
(A) no assistance may be provided to a public
water system under part G unless the system has
entered into an enforceable commitment with the
State providing that any person who operates
the system will be trained and certified
according to requirements established by the
Administrator or the State (in the case of a
State with primary enforcement responsibility
under section 1413) not later than the date of
completion of the capital project for which the
assistance is provided; and
(B) a public water system that has received
assistance under part G may be operated only by
a person who has been trained and certified
according to requirements established by the
Administrator or the State (in the case of a
State with primary enforcement responsibility
under section 1413).
(2) Guidelines.--Not later than 18 months after the
date of enactment of the Safe Drinking Water Act
Amendments of 1995 and after consultation with the
States, the Administrator shall publish information to
assist States in carrying out paragraph (1). In the
case of a State with primary enforcement responsibility
under section 1413 or any other State that has
established a training program that is consistent with
the guidance issued under this paragraph, the authority
to prescribe the appropriate level of training for
certification for all systems shall be solely the
responsibility of the State. The guidance issued under
this paragraph shall also include information to assist
States in certifying laboratories engaged in testing
for the purpose of compliance with sections 1445 and
1401(1).
(3) Noncompliance.--If a public water system in a
State is not operated in accordance with paragraph (1),
the Administrator is authorized to withhold from funds
that would otherwise be allocated to the State under
section 1472 or require the repayment of an amount
equal to the amount of any assistance under part G
provided to the public water system.
(f) There are authorized to be appropriated to carry out
the pro-visions of this section, other than subsection
(a)(2)(B) and provisions relating to research, $15,000,000 for
the fiscal year ending June 30, 1975;$25,000,000 for the fiscal
year ending June 30, 1976; $35,000,000 for the fiscal year
ending June 30, 1977; $17,000,000 for each of the fiscal years
1978 and 1979; $21,405,000 for the fiscal year ending September
30, 1980; $30,000,000 for the fiscal year ending September 30,
1981; and $35,000,000 for the fiscal year ending September 30,
1982. There are authorized to be appropriated to carry out
subsection (a)(2)(B) $8,000,000 for each of the fiscal years
1978 through 1982. There are authorized to be appropriated to
carry out subsection (a)(2)(B) not more than the following
amounts:
Fiscal year: Amount
1987..........................................................$7,650,000
1988.......................................................... 7,650,000
1989.......................................................... 8,050,000
1990.......................................................... 8,050,000
1991.......................................................... 8,050,000
There are authorized to be appropriated to carry out the
provisions of this section (other than subsection (g),
subsection (a)(2)(B), and provisions relating to research), not
more than the following amounts:
Fiscal year Amount
1987.........................................................$35,600,000
1988..........................................................35,600,000
1989..........................................................38,020,000
1990..........................................................38,020,000
1991..........................................................38,020,000
(g) The Administrator is authorized to provide technical
assistance to small public water systems to enable such systems
to achieve and maintain compliance with national drinking water
regulations. Such assistance may include ``circuit-rider'' and
multi-State regional technical assistance programs, training,
and preliminary engineering studies. [There are authorized to
be appropriated to carry out this subsection $10,000,000 for
each of the fiscal years 1987 through 1991.] The Administrator
shall ensure that funds made available for technical assistance
pursuant to this subsection are allocated among the States
equally. Each nonprofit organization receiving assistance under
this subsection shall consult with the State in which the
assistance is to be expended or otherwise made available before
using the assistance to undertake activities to carry out this
subsection. There are authorized to be appropriated to carry
out this subsection $15,000,000 for each of fiscal years 1992
through 2003. Not less than the greater of--
(1) 3 percent of the amounts appropriated under this
subsection, or
(2) $280,000
shall be utilized for technical assistance to public water
systems owned or operated by Indian tribes.
(h) Small Public Water Systems Technology Assistance
Centers._
(1) Grant program.--The Administrator is authorized
to make grants to institutions of higher learning to
establish and operate not fewer than 5 small public
water system technology assistance centers in the
United States.
(2) Responsibilities of the centers.--The
responsibilities of the small public water system
technology assistance centers established under this
subsection shall include the conduct of research,
training, and technical assistance relating to the
information, performance, and technical needs of small
public water systems or public water systems that serve
Indian Tribes.
(3) Applications.--Any institution of higher learning
interested in receiving a grant under this subsection
shall submit to the Administrator an application in
such form and containing such information as the
Administrator may require by regulation.
(4) Selection criteria.--The Administrator shall
select recipients of grants under this subsection on
the basis of the following criteria:
(A) The small public water system technology
assistance center shall be located in a State
that is representative of the needs of the
region in which the State is located for
addressing the drinking water needs of rural
small communities or Indian Tribes.
(B) The grant recipient shall be located in a
region that has experienced problems with rural
water supplies.
(C) There is available to the grant recipient
for carrying out this subsection demonstrated
expertise in water resources research,
technical assistance, and training.
(D) The grant recipient shall have the
capability to provide leadership in making
national and regional contributions to the
solution of both long-range and intermediate-
range rural water system technology management
problems.
(E) The grant recipient shall have a
demonstrated interdisciplinary capability with
expertise in small public water system
technology management and research.
(F) The grant recipient shall have a
demonstrated capability to disseminate the
results of small public water system technology
research and training programs through an
interdisciplinary continuing education program.
(G) The projects that the grant recipient
proposes to carry out under the grant are
necessary and appropriate.
(H) The grant recipient has regional support
beyond the host institution.
(I) The grant recipient shall include the
participation of water resources research
institutes established under section 104 of the
Water Resources Research Act of 1984 (42 U.S.C.
10303).
(5) Alaska.--For purposes of this subsection, the
State of Alaska shall be considered to be a region.
(6) Consortia of states.--At least 2 of the grants
under this subsection shall be made to consortia of
States with low population densities. In this
paragraph, the term `consortium of States with low
population densities' means a consortium of States,
each State of which has an average population density
of less than 12.3 persons per square mile, based on
data for 1993 from the Bureau of the Census.
(7) Additional considerations.--At least one center
established under this subsection shall focus primarily
on the development and evaluation of new technologies
and new combinations of existing technologies that are
likely to provide more reliable or lower cost options
for providing safe drinking water. This center shall be
located in a geographic region of the country with a
high density of small systems, at a university with an
established record of developing and piloting small
treatment technologies in cooperation with industry,
States, communities, and water system associations.
(8) Authorization of appropriations.--There are
authorized to be appropriated to make grants under this
subsection $10,000,000 for each of fiscal years 1995
through 2003.
(i) Biological Mechanisms.--In carrying out this section,
the Administrator shall conduct studies to--
(1) understand the mechanisms by which chemical
contaminants are absorbed, distributed, metabolized,
and eliminated from the human body, so as to develop
more accurate physiologically based models of the
phenomena;
(2) understand the effects of contaminants and the
mechanisms by which the contaminants cause adverse
effects (especially noncancer and infectious effects)
and the variations in the effects among humans,
especially subpopulations at greater risk of adverse
effects, and between test animals and humans; and
(3) develop new approaches to the study of complex
mixtures, such as mixtures found in drinking water,
especially to determine the prospects for synergistic
or antagonistic interactions that may affect the shape
of the dose-response relationship of the individual
chemicals and microbes, and to examine noncancer
endpoints and infectious diseases, and susceptible
individuals and subpopulations.
(j) Research Priorities.--To establish long-term priorities
for research under this section, the Administrator shall
develop, and periodically update, an integrated risk
characterization strategy for drinking water quality. The
strategy shall identify unmet needs, priorities for study, and
needed improvements in the scientific basis for activities
carried out under this title. The initial strategy shall be
made available to the public not later than 3 years after the
date of enactment of this subsection.
(k) Research Plan for Harmful Substances in Drinking
Water._
(1) Development of plan.--The Administrator shall--
(A) not later than 180 days after the date of
enactment of this subsection, after
consultation with the Secretary of Health and
Human Services, the Secretary of Agriculture,
and, as appropriate, the heads of other Federal
agencies, develop a research plan to support
the development and implementation of the most
current version of the--
(i) enhanced surface water treatment
rule (59 Fed. Reg. 38832 (July 29,
1994));
(ii) disinfectant and disinfection
byproducts rule (Stage 2) (59 Fed. Reg.
38668 (July 29, 1994)); and
(iii) ground water disinfection rule
(availability of draft summary
announced at 57 Fed. Reg. 33960 (July
31, 1992)); and
(B) carry out the research plan, after
consultation and appropriate coordination with
the Secretary of Agriculture and the heads of
other Federal agencies.
(2) Contents of plan._
(A) In general.--The research plan shall
include, at a minimum--
(i) an identification and
characterization of new disinfection
byproducts associated with the use of
different disinfectants;
(ii) toxicological studies and, if
warranted, epidemiological studies to
determine what levels of exposure from
disinfectants and disinfection
byproducts, if any, may be associated
with developmental and birth defects
and other potential toxic end points;
(iii) toxicological studies and, if
warranted, epidemiological studies to
quantify the carcinogenic potential
from exposure to disinfection
byproducts resulting from different
disinfectants;
(iv) the development of practical
analytical methods for detecting and
enumerating microbial contaminants,
including giardia, cryptosporidium, and
viruses;
(v) the development of reliable,
efficient, and economical methods to
determine the viability of individual
cryptosporidium oocysts;
(vi) the development of dose-response
curves for pathogens, including
cryptosporidium and the Norwalk virus;
(vii) the development of indicators
that define treatment effectiveness for
pathogens and disinfection byproducts;
and
(viii) bench, pilot, and full-scale
studies and demonstration projects to
evaluate optimized conventional
treatment, ozone, granular activated
carbon, and membrane technology for
controlling pathogens (including
cryptosporidium) and disinfection
byproducts.
(B) Risk definition strategy.--The research
plan shall include a strategy for determining
the risks and estimated extent of disease
resulting from pathogens, disinfectants, and
disinfection byproducts in drinking water, and
the costs and removal efficiencies associated
with various control methods for pathogens,
disinfectants, and disinfection byproducts.
(3) Implementation of plan.--In carrying out the
research plan, the Administrator shall use the most
cost-effective mechanisms available, including
coordination of research with, and use of matching
funds from, institutions and utilities.
(4) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection $12,500,000 for each of fiscal years 1997
through 2003.
(l) Subpopulations at Greater Risk._
(1) Research plan.--The Administrator shall conduct a
continuing program of peer-reviewed research to
identify groups within the general population that may
be at greater risk than the general population of
adverse health effects from exposure to contaminants in
drinking water. Not later than 1 year after the date of
enactment of this subsection, the Administrator shall
develop and implement a research plan to establish
whether and to what degree infants, children, pregnant
women, the elderly, individuals with a history of
serious illness, or other subpopulations that can be
identified and characterized are likely to experience
elevated health risks, including risks of cancer, from
contaminants in drinking water.
(2) Contents of plan.--To the extent appropriate, the
research shall be--
(A) integrated into the health effects
research plan carried out by the Administrator
to support the regulation of specific
contaminants under this Act; and
(B) designed to identify--
(i) the nature and extent of the
elevated health risks, if any;
(ii) the groups likely to experience
the elevated health risks;
(iii) biological mechanisms and other
factors that may contribute to elevated
health risks for groups within the
general population;
(iv) the degree of variability of the
health risks to the groups from the
health risks to the general population;
(v) the threshold, if any, at which
the elevated health risks for a
specific contaminant occur; and
(vi) the probability of the exposure
to the contaminants by the identified
group.
(3) Report.--Not later than 4 years after the date of
enactment of this subsection and periodically
thereafter as new and significant information becomes
available, the Administrator shall report to Congress
on the results of the research.
(4) Use of research.--In characterizing the health
effects of drinking water contaminants under this Act,
the Administrator shall consider all relevant factors,
including the results of research under this
subsection, the margin of safety for variability in the
general population, and sound scientific practices
(including the 1993 and 1994 reports of the National
Academy of Sciences) regarding subpopulations at
greater risk for adverse health effects.
grants for state programs
Sec. 1443. (a)(1) From allotments made pursuant to
paragraph (4), the Administrator may make grants to States to
carry out public water system supervision programs.
(2) No grant may be made under paragraph (1) unless an
application therefor has been submitted to the Administrator in
such form and manner as he may require. The Administrator may
not approve an application of a State for its first grant under
paragraph (1) unless he determines that the State--
(A) has established or will establish within one year
from the date of such grant a public water system
supervision program, and
(B) will, within that one year, assume primary
enforcement responsibility for public water system
within the State.
No grant may be made to a State under paragraph (1) for any
period beginning more than one year after the date of the
State's first grant unless the State has assumed and maintains
primary enforcement responsibility for public water systems
within the State. The prohibitions contained in the preceding
two sentences shall not apply to such grants when made to
Indian Tribes.
[(3) A grant] (3) Amount of grant._
(A) In general.--A grant under paragraph (1) shall be
made to cover not more than 75 per centum of the grant
recipient's costs (as determined under regulations of
the Administrator) in carrying out, during the one-year
period beginning on the date the grant is made, a
public water system supervision program.
(B) Determination of costs.--To determine the costs
of a grant recipient pursuant to this paragraph, the
Administrator shall, in cooperation with the States and
not later than 180 days after the date of enactment of
this subparagraph, establish a resource model for the
public water system supervision program and review and
revise the model as necessary.
(C) State cost adjustments.--The Administrator shall
revise cost estimates used in the resource model for
any particular State to reflect costs more likely to be
experienced in that State, if--
(i) the State requests the modification; and
(ii) the revised estimates ensure full and
effective administration of the public water
system supervision program in the State and the
revised estimates do not overstate the
resources needed to administer the program.
(4) In each fiscal year the Administrator shall, in
accordance with regulations, allot the sums appropriated for
such year under paragraph (5) among the States on the basis of
population, geographical area, number of public water systems,
and other relevant factors. No State shall receive less than 1
per centum of the annual appropriation for grants under
paragraph (1): Provided, That the Administrator may, by
regulation, reduce such percentage in accordance with the
criteria specified in this paragraph: And provided further,
That such percentage shall not apply to grants allotted to
Guam, American Samoa, or the Virgin Islands.
(5) The prohibition contained in the last sentence of
paragraph (2) may be waived by the Administrator with respect
to a grant to a State through fiscal year 1979 but such
prohibition may only be waived if, in the judgment of the
Administrator--
(A) the State is making diligent effort to assume and
maintain primary enforcement responsibility for public
water systems within the State;
(B) the State has made significant progress toward
assuming and maintaining such primary enforcement
responsibility; and
(C) there is reason to believe the State will assume
such primary enforcement responsibility by October 1,
1979.
The amount of any grant awarded for the fiscal years 1978 and
1979 pursuant to a waiver under this paragraph may not exceed
75 per centum of the allotment which the State would have
received for such fiscal year if it had assumed and maintained
such primary enforcement responsibility. The remaining 25 per
centum of the amount allotted to such State for such fiscal
year shall be retained by the Administrator, and the
Administrator may award such amount to such State at such time
as the State assumes such responsibility before the beginning
of fiscal year 1980. At the beginning of each fiscal years 1979
and 1980 the amounts retained by the Administrator for any
preceding fiscal year and not awarded by the beginning of
fiscal year 1979 or 1980 to the States to which such amounts
were originally allotted may be removed from the original
allotment and reallotted for fiscal year 1979 or 1980 (as the
case may be) to States which have assumed primary enforcement
responsibility by the beginning of such fiscal year.
(6) The Administrator shall notify the State of the
approval or disapproval of any application for a grant under
this section--
(A) within ninety days after receipt of such
application, or
(B) not later than the first day of the fiscal year
for which the grant application is made, whichever is
later.
(7) For the purposes of making grants under paragraph (1)
there are authorized to be appropriated $15,000,000 for the
fiscal year ending June 30, 1976, $ 25,000,000 for the fiscal
year ending June 30, 1977, $35,000,000 for fiscal year 1978,
$45,000,000 for fiscal year 1979, $29,450,000 for the fiscal
year ending September 30, 1980, $32,000,000 for the fiscal yea
rending September 30, 1981, and $34,000,000 for the fiscal year
ending September 30, 1982. For the purposes of making grants
under paragraph (1) there are authorized to be appropriated not
more than the following amounts:
Fiscal year Amount
1987.........................................................$37,200,000
1988..........................................................37,200,000
1989..........................................................40,150,000
1990..........................................................40,150,000
1991..........................................................41,150,000
For the purpose of making grants under paragraph (1), there are
authorized to be appropriated such sums as are necessary for
each of fiscal years 1992 and 1993 and $100,000,000 for each of
fiscal years 1994 through 2003.
(8) Reservation of funds by the administrator.--If the
Administrator assumes the primary enforcement responsibility of
a State public water system supervision program, the
Administrator may reserve from funds made available pursuant to
this subsection, an amount equal to the amount that would
otherwise have been provided to the State pursuant to this
subsection. The Administrator shall use the funds reserved
pursuant to this paragraph to ensure the full and effective
administration of a public water system supervision program in
the State.
(9) State loan funds._
(A) Reservation of funds.--For any fiscal year for
which the amount made available to the Administrator by
appropriations to carry out this subsection is less
than the amount that the Administrator determines is
necessary to supplement funds made available pursuant
to paragraph (8) to ensure the full and effective
administration of a public water system supervision
program in a State (based on the resource model
developed under paragraph (3)(B)), the Administrator
may reserve from the funds made available to the State
under section 1472 an amount that is equal to the
amount of the shortfall.
(B) Duty of administrator.--If the Administrator
reserves funds from the allocation of a State under
subparagraph (A), the Administrator shall carry out in
the State--
(i) each of the activities that would be
required of the State if the State had primary
enforcement authority under section 1413; and
(ii) each of the activities required of the
State by this title, other than part C, but not
made a condition of the authority.
(b)(1) From allotments made pursuant to paragraph (4), the
Administrator may make grants to States to carry out
underground water source protection programs.
(2) No grant may be made under paragraph (1) unless an
application therefor has been submitted to the Administrator in
such form and manner as he may require. No grant may be made to
any State under paragraph (1) unless the State has assumed
primary enforcement responsibility within two years after the
date the Administrator promulgates regulations for State
underground injection control programs under section 1421. The
prohibition contained in the preceding sentence shall not apply
to such grants when made to Indian Tribes.
(3) A grant under paragraph (1) shall be made to cover not
more than 75 per centum of the grant recipient's costs (as
determined under regulations of the Administrator) in carrying
out, during the one-year period beginning on the date the grant
is made, an underground water source protection program.
(4) In each fiscal year the Administrator shall, in
accordance with regulations, allot the sums appropriated for
such year under paragraph (5) among the States on the basis of
population, geographical area, and other relevant factors.
(5) For purposes of making grants under paragraph (1) there
are authorized to be appropriated $5,000,000 for the fiscal
year ending June 30, 1976, $7,500,000 for the fiscal year
ending June 30, 1977, $10,000,000 for each of the fiscal years
1978 and 1979, $7,795,000 for the fiscal year ending September
30, 1980, $18,000,000 for the fiscal year ending September 30,
1981, and $21,000,000 for the fiscal year ending September 30,
1982. For the purpose of making grants under paragraph (1)
there are authorized to be appropriated not more than the
following amounts:
Fiscal year Amount
1987.........................................................$19,700,000
1988..........................................................19,700,000
1989..........................................................20,850,000
1990..........................................................20,850,000
1991..........................................................20,850,000
1992--2003....................................................20,850,000
(c) State Ground Water Protection Grants._
(1) In general.--The Administrator may make a grant
to a State for the development and implementation of a
State program to ensure the coordinated and
comprehensive protection of ground water resources
within the State.
(2) Guidance.--Not later than 1 year after the date
of enactment of the Safe Drinking Water Act Amendments
of 1995, and annually thereafter, the Administrator
shall publish guidance that establishes procedures for
application for State ground water protection program
assistance and that identifies key elements of State
ground water protection programs.
(3) Conditions of grants._
(A) In general.--The Administrator shall
award grants to States that submit an
application that is approved by the
Administrator. The Administrator shall
determine the amount of a grant awarded
pursuant to this paragraph on the basis of an
assessment of the extent of ground water
resources in the State and the likelihood that
awarding the grant will result in sustained and
reliable protection of ground water quality.
(B) Innovative program grants.--The
Administrator may also award a grant pursuant
to this paragraph for innovative programs
proposed by a State for the prevention of
ground water contamination.
(C) Allocation of funds.--The Administrator
shall, at a minimum, ensure that, for each
fiscal year, not less than 1 percent of funds
made available to the Administrator by
appropriations to carry out this subsection are
allocated to each State that submits an
application that is approved by the
Administrator pursuant to this subsection.
(D) Limitation on grants.--No grant awarded
by the Administrator may be used for a project
to remediate ground water contamination.
(4) Coordination with other grant programs.--The
awarding of grants by the Administrator pursuant to
this subsection shall be coordinated with the awarding
of grants pursuant to section 319(i) of the Federal
Water Pollution Control Act (33 U.S.C. 1329(i)) and the
awarding of other Federal grant assistance that
provides funding for programs related to ground water
protection.
(5) Amount of grants.--The amount of a grant awarded
pursuant to paragraph (1) shall not exceed 50 percent
of the eligible costs of carrying out the ground water
protection program that is the subject of the grant (as
determined by the Administrator) for the 1-year period
beginning on the date that the grant is awarded. The
State shall pay a State share to cover the costs of the
ground water protection program from State funds in an
amount that is not less than 50 percent of the cost of
conducting the program.
(6) Evaluations and reports.--Not later than 3 years
after the date of enactment of the Safe Drinking Water
Act Amendments of 1995, and every 3 years thereafter,
the Administrator shall evaluate the State ground water
protection programs that are the subject of grants
awarded pursuant to this subsection and report to
Congress on the status of ground water quality in the
United States and the effectiveness of State programs
for ground water protection.
(7) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
subsection $20,000,000 for each of fiscal years 1995
through 2003.
[(c)] (d) For purposes of this section:
(1) The term `public water system supervision program'
means a program for the adoption and enforcement of drinking
water regulations (with such variances and exemptions from such
regulations under conditions and in a manner which is not less
stringent than the conditions under, and the manner in, which
variances and exemptions may be granted under sections 1415 and
1416) which are no less stringent than the national primary
drinking water regulations under section 1412, and for keeping
records and making reports required by section 1413(a)(3).
(2) The term `underground water source protection program'
means a program for the adoption and enforcement of a program
which meets the requirements of regulations under section 1421
and for keeping records and making reports required by section
1422(b)(1)(A)(ii). Such term includes, where applicable, a
program which meets the requirements of section 1425.
special study and demonstration project grants; guaranteed loans
Sec. 1444. (a) The Administrator may make grants to any
person for the purposes of--
(1) assisting in the development and demonstration
(including construction) of any project which will
demonstrate a new or improved method, approach, or
technology, for providing a dependable safe supply of
drinking water to the public; and
(2) assisting in the development and demonstration
(including construction) of any project which will
investigate and demonstrate health implications
involved in the reclamation, recycling, and reuse of
waste waters for drinking and the processes and methods
for the preparation of safe and acceptable drinking
water.
(b) Grants made by the Administrator under this section
shall be subject to the following limitations:
(1) Grants under this section shall not exceed 66 per
centum of the total cost of construction of any
facility and 75 per centum of any other costs, as
determined by the Administrator.
(2) Grants under this section shall not be made for
any project involving the construction or modification
of any facilities for any public water system in a
State unless such project has been approved by the
State agency charged with the responsibility for safety
of drinking water (or if there is no such agency in a
State, by the State health authority).
(3) Grants under this section shall not be made for
any project unless the Administrator determines, after
consulting the National Drinking Water Advisory
Council, that such project will serve a useful purpose
relating to the development and demonstration of new or
improved techniques, methods, or technologies for the
provision of safe water to the public for drinking.
(4) Priority for grants under this section shall be
given where there are known or potential public health
hazards which require advanced technology for the
removal of particles which are too small to be removed
by ordinary treatment technology.
(c) For the purposes of making grants under subsections (a)
and (b) of this section there are authorized to be appropriated
$7,500,000 for the fiscal year ending June 30, 1975; and
$7,500,000 for the fiscal year ending June 30, 1976; and
$10,000,000 for the fiscal year ending June 30, 1977.
(d) The Administrator during the fiscal years ending June
30, 1975, and June 30, 1976, shall carry out a program of
guaranteeing loans made by private lenders to small public
water systems for the purpose of enabling such systems to meet
national primary drinking water regulations prescribed under
section 1412. No such guarantee may be made with respect to a
system unless (1) such system cannot reasonably obtain
financial assistance necessary to comply with such regulations
from any other source, and (2) the Administrator determines
that any facilities constructed with a loan guaranteed under
this subsection is not likely to be made obsolete by subsequent
changes in primary regulations. The aggregate amount of
indebtedness guaranteed with respect to any system may not
exceed $50,000. The aggregate amount of indebtedness guaranteed
under this subsection may not exceed $50,000,000. The
Administrator shall prescribe regulations to carry out this
subsection.
records and inspections
Sec. 1445. (a)(1)(A) [Every person who is a supplier of
water, who is or may be otherwise subject to a primary drinking
water regulation prescribed under section 1412 or to an
applicable underground injection control program (as defined in
section 1422(c)), who is or may be subject to the permit
requirement of section 1424 or to an order issued under section
1441, or who is a grantee] Every person who is subject to any
requirement of this title or who is a grantee, shall establish
and maintain such records, make such reports, conduct such
monitoring by accepted methods, and provide [such information
as the Administrator may reasonably require by regulation to
assist him in establishing regulations under this title, in
determining whether such person has acted or is acting in
compliance with this title, in administering any program of
financial assistance under this title, in evaluating the health
risks of unregulated contaminants, or in advising the public of
such risks.] such information as the Administrator may
reasonably require--
(i) to assist the Administrator in establishing
regulations under this title or to assist the
Administrator in determining, on a case-by-case basis,
whether the person has acted or is acting in compliance
with this title; and
(ii) by regulation to assist the Administrator in
determining compliance with national primary drinking
water regulations promulgated under section 1412 or in
administering any program of financial assistance under
this title.
If the Administrator is requiring monitoring for purposes of
testing new or alternative methods, the Administrator may
require the use of other than accepted methods.
(B) In requiring a public water system to monitor under
this subsection, the Administrator may take into consideration
the system size and the contaminants likely to be found in the
system's drinking water.
(C) Review.--The Administrator shall not later than 2 years
after the date of enactment of this subparagraph, after
consultation with public health experts, representatives of the
general public, and officials of State and local governments,
review the monitoring requirements for not fewer than 12
contaminants identified by the Administrator, and promulgate
any necessary modifications.
(D) State-established requirements._
(i) In general.--Each State with primary enforcement
responsibility under section 1413 may, by rule,
establish alternative monitoring requirements for any
national primary drinking water regulation, other than
a regulation applicable to a microbial contaminant (or
an indicator of a microbial contaminant). The
alternative monitoring requirements established by a
State under this clause may not take effect for any
national primary drinking water regulation until after
completion of at least 1 full cycle of monitoring in
the State satisfying the requirements of paragraphs (1)
and (2) of section 1413(a). The alternative monitoring
requirements may be applicable to public water systems
or classes of public water systems identified by the
State, in lieu of the monitoring requirements that
would otherwise be applicable under the regulation, if
the alternative monitoring requirements--
(I) are based on use of the best available
science conducted in accordance with sound and
objective scientific practices and data
collected by accepted methods;
(II) are based on the potential for the
contaminant to occur in the source water based
on use patterns and other relevant
characteristics of the contaminant or the
systems subject to the requirements;
(III) in the case of a public water system or
class of public water systems in which a
contaminant has been detected at quantifiable
levels that are not reliably and consistently
below the maximum contaminant level, include
monitoring frequencies that are not less
frequent than the frequencies required in the
national primary drinking water regulation for
the contaminant for a period of 5 years after
the detection; and
(IV) in the case of each contaminant formed
in the distribution system, are not applicable
to public water systems for which treatment is
necessary to comply with the national primary
drinking water regulation.
(ii) Compliance and enforcement.--The alternative
monitoring requirements established by the State shall
be adequate to ensure compliance with, and enforcement
of, each national primary drinking water regulation.
The State may review and update the alternative
monitoring requirements as necessary.
(iii) Application of section 1413.--
(I) In general.--Each State establishing
alternative monitoring requirements under this
subparagraph shall submit the rule to the
Administrator as provided in section
1413(b)(1). Any requirements for a State to
provide information supporting a submission
shall be defined only in consultation with the
States, and shall address only such information
as is necessary to make a decision to approve
or disapprove an alternative monitoring rule in
accordance with the following sentence. The
Administrator shall approve an alternative
monitoring rule submitted under this clause for
the purposes of section 1413, unless the
Administrator determines in writing that the
State rule for alternative monitoring does not
ensure compliance with, and enforcement of, the
national primary drinking water regulation for
the contaminant or contaminants to which the
rule applies.
(II) Exceptions.--The requirements of section
1413(a)(1) that a rule be no less stringent
than the national primary drinking water
regulation for the contaminant or contaminants
to which the rule applies shall not apply to
the decision of the Administrator to approve or
disapprove a rule submitted under this clause.
Notwithstanding the requirements of section
1413(b)(2), the Administrator shall approve or
disapprove a rule submitted under this clause
within 180 days of submission. In the absence
of a determination to disapprove a rule made by
the Administrator within 180 days, the rule
shall be deemed to be approved under section
1413(b)(2).
(III) Additional considerations.--A State
shall be considered to have primary enforcement
authority with regard to an alternative
monitoring rule, and the rule shall be
effective, on a date (determined by the State)
any time on or after submission of the rule,
consistent with section 1413(c). A decision by
the Administrator to disapprove an alternative
monitoring rule under section 1413 or to
withdraw the authority of the State to carry
out the rule under clause (iv) may not be the
basis for withdrawing primary enforcement
responsibility for a national primary drinking
water regulation or regulations from the State
under section 1413.
(iv) Oversight by the administrator.--The
Administrator shall review, not less often than every 5
years, any alternative monitoring requirements
established by a State under clause (i) to determine
whether the requirements are adequate to ensure
compliance with, and enforcement of, national primary
drinking water regulations. If the Administrator
determines that the alternative monitoring requirements
of a State are inadequate with respect to a
contaminant, and after providing the State with an
opportunity to respond to the determination of the
Administrator and to correct any inadequacies, the
Administrator may withdraw the authority of the State
to carry out the alternative monitoring requirements
with respect to the contaminant. If the Administrator
withdraws the authority, the monitoring requirements
contained in the national primary drinking water
regulation for the contaminant shall apply to public
water systems in the State.
(v) Nonprimacy states.--The Governor of any State
that does not have primary enforcement responsibility
under section 1413 on the date of enactment of this
clause may submit to the Administrator a request that
the Administrator modify the monitoring requirements
established by the Administrator and applicable to
public water systems in that State. After consultation
with the Governor, the Administrator shall modify the
requirements for public water systems in that State if
the request of the Governor is in accordance with each
of the requirements of this subparagraph that apply to
alternative monitoring requirements established by
States that have primary enforcement responsibility. A
decision by the Administrator to approve a request
under this clause shall be for a period of 3 years and
may subsequently be extended for periods of 5 years.
(vi) Guidance.--The Administrator shall issue
guidance in consultation with the States that States
may use to develop State-established requirements
pursuant to this subparagraph and subparagraph (E). The
guidance shall identify options for alternative
monitoring designs that meet the criteria identified in
clause (i) and the requirements of clause (ii).
(E) Small system monitoring.--The Administrator or a State
that has primary enforcement responsibility under section 1413
may modify the monitoring requirements for any contaminant,
other than a microbial contaminant or an indicator of a
microbial contaminant, a contaminant regulated on the basis of
an acute health effect, or a contaminant formed in the
treatment process or in the distribution system, to provide
that any public water system that serves a population of 10,000
or fewer shall not be required to conduct additional quarterly
monitoring during any 3-year period for a specific contaminant
if monitoring conducted at the beginning of the period for the
contaminant fails to detect the presence of the contaminant in
the water supplied by the public water system, and the
Administrator or the State determines that the contaminant is
unlikely to be detected by further monitoring in the period.
[(2) Not later than 18 months after enactment of the Safe
Drinking Water Act Amendments of 1986, the Administrator shall
promulgate regulations requiring every public water system to
conduct a monitoring program for unregulated contaminants. The
regulations shall require monitoring of drinking water supplied
by the system and shall vary the frequency and schedule of
monitoring requirements for systems based on the number of
persons served by the system, the source of supply, and the
contaminants likely to be found. Each system shall be required
to monitor at least once every 5 years after the effective date
of the Administrator's regulations unless the Administrator
requires more frequent monitoring.
(3) Regulations under paragraph (2) shall list unregulated
contaminants for which systems may be required to monitor, and
shall include criteria by which the primary enforcement
authority in each State could show cause for addition or
deletion of contaminants from the designated list. The primary
State enforcement authority may delete contaminants for an
individual system, in accordance with these criteria, after
obtaining approval of assessment of the contaminants
potentially to be found in the system. The Administrator shall
approve or disapprove such an assessment submitted by a State
within 60 days. A State may add contaminants, in accordance
with these criteria, without making an assessment, but in no
event shall such additions increase Federal expenditures
authorized by this section.
(4) Public water systems conducting monitoring of
unregulated contaminants pursuant to this section shall provide
the results of such monitoring to the primary enforcement
authority.
(5) Notification of the availability of the results of the
monitoring programs required under paragraph (2), and
notification of the availability of the results of the
monitoring program referred to in paragraph (6), shall be given
to the persons served by the system and the Administrator.
(6) The Administrator may waive the monitoring requirement
under paragraph (2) for a system which has conducted a
monitoring program after January 1, 1983, if the Administrator
determines the program to have been consistent with the
regulations promulgated under this section.
(7) Any system supplying less than 150 service connections
shall be treated as complying with this subsection if such
system provides water samples or the opportunity for sampling
according to rules established by the Administrator.
(8) There are authorized to be appropriated $30,000,000 in
the fiscal year ending September 30, 1987 to remain available
until expended to carry out the provisions of this subsection.]
(2) Monitoring program for unregulated contaminants._
(A) Establishment.--The Administrator shall
promulgate regulations establishing the criteria for a
monitoring program for unregulated contaminants. The
regulations shall require monitoring of drinking water
supplied by public water systems and shall vary the
frequency and schedule for monitoring requirements for
systems based on the number of persons served by the
system, the source of supply, and the contaminants
likely to be found.
(B) Monitoring program for certain unregulated
contaminants._
(i) Initial list.--Not later than 3 years
after the date of enactment of the Safe
Drinking Water Amendments of 1995 and every 5
years thereafter, the Administrator shall issue
a list pursuant to subparagraph (A) of not more
than 20 unregulated contaminants to be
monitored by public water systems and to be
included in the national drinking water
occurrence data base maintained pursuant to
paragraph (3).
(ii) Governors' petition.--The Administrator
shall include among the list of contaminants
for which monitoring is required under this
paragraph each contaminant recommended in a
petition signed by the Governor of each of 7 or
more States, unless the Administrator
determines that the action would prevent the
listing of other contaminants of a higher
public health concern.
(C) Monitoring by large systems.--A public water
system that serves a population of more than 10,000
shall conduct monitoring for all contaminants listed
under subparagraph (B).
(D) Monitoring plan for small and medium systems._
(i) In general.--Based on the regulations
promulgated by the Administrator, each State
shall develop a representative monitoring plan
to assess the occurrence of unregulated
contaminants in public water systems that serve
a population of 10,000 or fewer. The plan shall
require monitoring for systems representative
of different sizes, types, and geographic
locations in the State.
(ii) Grants for small system costs.--From
funds reserved under section 1478(c), the
Administrator shall pay the reasonable cost of
such testing and laboratory analysis as are
necessary to carry out monitoring under the
plan.
(E) Monitoring results.--Each public water system
that conducts monitoring of unregulated contaminants
pursuant to this paragraph shall provide the results of
the monitoring to the primary enforcement authority for
the system.
(F) Waiver of monitoring requirement.--The
Administrator shall waive the requirement for
monitoring for a contaminant under this paragraph in a
State, if the State demonstrates that the criteria for
listing the contaminant do not apply in that State.
(G) Analytical methods.--The State may use screening
methods approved by the Administrator under subsection
(h) in lieu of monitoring for particular contaminants
under this paragraph.
(H) Authorization of appropriations.--There are
authorized to be appropriated to carry out this
paragraph $10,000,000 for each of fiscal years 1995
through 2003.
(3) National drinking water occurrence database._
(A) In general.--Not later than 3 years after the
date of enactment of the Safe Drinking Water Act
Amendments of 1995, the Administrator shall assemble
and maintain a national drinking water occurrence data
base, using information on the occurrence of both
regulated and unregulated contaminants in public water
systems obtained under paragraph (2) and reliable
information from other public and private sources.
(B) Use.--The data shall be used by the Administrator
in making determinations under section 1412(b)(1) with
respect to the occurrence of a contaminant in drinking
water at a level of public health concern.
(C) Public recommendations.--The Administrator shall
periodically solicit recommendations from the
appropriate officials of the National Academy of
Sciences and the States, and any person may submit
recommendations to the Administrator, with respect to
contaminants that should be included in the national
drinking water occurrence data base, including
recommendations with respect to additional unregulated
contaminants that should be listed under paragraph (2).
Any recommendation submitted under this clause shall be
accompanied by reasonable documentation that--
(i) the contaminant occurs or is likely to
occur in drinking water; and
(ii) the contaminant poses a risk to public
health.
(D) Public availability.--The information from the
data base shall be available to the public in readily
accessible form.
(E) Regulated contaminants.--With respect to each
contaminant for which a national primary drinking water
regulation has been established, the data base shall
include information on the detection of the contaminant
at a quantifiable level in public water systems
(including detection of the contaminant at levels not
constituting a violation of the maximum contaminant
level for the contaminant).
(F) Unregulated contaminants.--With respect to
contaminants for which a national primary drinking
water regulation has not been established, the data
base shall include--
(i) monitoring information collected by
public water systems that serve a population of
more than 10,000, as required by the
Administrator under paragraph (2);
(ii) monitoring information collected by the
States from a representative sampling of public
water systems that serve a population of 10,000
or fewer; and
(iii) other reliable and appropriate
monitoring information on the occurrence of the
contaminants in public water systems that is
available to the Administrator.
(b)(1) Except as provided in paragraph (2), the
Administrator, or representatives of the Administrator duly
designated by him, upon presenting appropriate credentials and
a written notice to any supplier of water or other person
subject to (A) a national primary drinking water regulation
prescribed under section 1412, (B) an applicable underground
injection control program, or (C) any requirement to monitor an
unregulated contaminant pursuant to subsection (a), or person
in charge of any of the property of such supplier or other
person referred to in clause (A), (B), or (C), is authorized to
enter any establishment, facility, or other property of such
supplier or other person in order to determine whether such
supplier or other person has acted or is acting in compliance
with this title, including for this purpose, inspection, at
reasonable times, of records, files, papers, processes,
controls, and facilities, or in order to test any feature of a
public water system, including its raw water source. The
Administrator or the Comptroller General (or any representative
designated by either) shall have access for the purpose of
audit and examination to any records, reports, or information
of a grantee which are required to be maintained under
subsection (a) or which are pertinent to any financial
assistance under this title.
(2) No entry may be made under the first sentence of
paragraph (1) in an establishment, facility, or other property
of a supplier of water or other person subject to a national
primary drinking water regulation if the establishment,
facility, or other property is located in a State which has
primary enforcement responsibility for public water systems
unless, before written notice of such entry is made, the
Administrator (or his representative) notifies the State agency
charged with responsibility for safe drinking water of the
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. No
State agency which receives notice under this paragraph of an
entry proposed to be made under paragraph (1) may use the
information contained in the notice to inform the person whose
property is proposed to be entered of the proposed entry; and
if a State agency so uses such information, notice to the
agency under this paragraph is not required until such time as
the Administrator determines the agency has provided him
satisfactory assurances that it will no longer so use
information contained in a notice under this paragraph.
(c) Whoever fails or refuses to comply with any requirement
of subsection (a) or to allow the Administrator, the
Comptroller General, or representatives of either, to enter and
conduct any audit or inspection authorized by subsection (b)
shall be subject to a civil penalty of not to exceed $25,000.
(d)(1) Subject to paragraph (2), upon a showing
satisfactory to the Administrator by any person that any
information required under this section from such person, if
made public, would divulge trade secrets or secret processes of
such person, the Administrator shall consider such information
confidential in accordance with the purposes of section 1905 of
title 18 of the United States Code. If the applicant fails to
make a showing satisfactory to the Administrator, the
Administrator shall give such applicant thirty days' notice
before releasing the information to which the application
relates (unless the public health or safety requires an earlier
release of such information).
(2) Any information required under this section (A) may be
disclosed to other officers, employees, or authorized
representatives of the United States concerned with carrying
out this title or to committees of the Congress, or when
relevant in any proceeding under this title, and (B) shall be
disclosed to the extent it deals with the level of contaminants
in drinking water. For purposes of this subsection the term
`information required under this section' means any papers,
books, documents, or information, or any particular part
thereof, reported to or otherwise obtained by the Administrator
under this section.
(e) For purposes of this section, (1) the term `grantee'
means any person who applies for or receives financial
assistance, by grant, contract, or loan guarantee under this
title, and (2) the term `person' includes a Federal agency.
(f) Information Regarding Drinking Water Coolers.--The
Administrator may utilize the authorities of this section for
purposes of part F. Any person who manufactures, imports,
sells, or distributes drinking water coolers in interstate
commerce shall be treated as a supplier of water for purposes
of applying the provisions of this section in the case of
persons subject to part F.
(g) Availability of Information on Small System
Technologies.--For purposes of paragraphs (4)(E) and (15) of
section 1412(b), the Administrator may request information on
the characteristics of commercially available treatment systems
and technologies, including the effectiveness and performance
of the systems and technologies under various operating
conditions. The Administrator may specify the form, content,
and date by which information shall be submitted by
manufacturers, States, and other interested persons for the
purpose of considering the systems and technologies in the
development of regulations or guidance under paragraph (4)(E)
or (15) of section 1412(b).
(h) Screening Methods.--The Administrator shall review new
analytical methods to screen for regulated contaminants and may
approve such methods as are more accurate or cost-effective
than established reference methods for use in compliance
monitoring.
national drinking water advisory council
Sec. 1446. (a) There is established a National Drinking
Water Advisory Council which shall consist of fifteen members
appointed by the Administrator after consultation with the
Secretary. Five members shall be appointed from the general
public; five members shall be appointed from appropriate State
and local agencies concerned with water hygiene and public
water supply; and five members shall be appointed from
representatives of private organizations or groups
demonstrating an active interest in the field of water hygiene
and public water supply, of which two such members shall be
associated with small, rural public water systems. Each member
of the Council shall hold office for a term of three years,
except that--
(1) any member appointed to fill a vacancy occurring
prior to the expiration of the term for which his
predecessor was appointed shall be appointed for the
remainder of such term; and
(2) the terms of the members first taking office
shall expire as follows: Five shall expire three years
after the date of enactment of this title, five shall
expire two years after such date, and five shall expire
one year after such date, as designated by the
Administrator at the time of appointment.
The members of the Council shall be eligible for reappointment.
(b) The Council shall advise, consult with, and make
recommendations to, the Administrator on matters relating to
activities, functions, and policies of the Agency under this
title.
(c) Members of the Council appointed under this section
shall, while attending meetings or conferences of the Council
or otherwise engaged in business of the Council, receive
compensation and allowances at a rate to be fixed by the
Administrator, but not exceeding the daily equivalent of the
annual rate of basic pay in effect for grade GS-18 of the
General Schedule for each day (including travel time) during
which they are engaged in the actual performance of duties
vested in the Council. While away from their homes or regular
places of business in the performance of services for the
Council, members of the Council shall be allowed travel
expenses, including per diem in lieu of subsistence, in the
same manner as persons employed intermittently in the
Government service are allowed expenses under section 5703(b)
of title 5 of the United States Code.
(d) Section 14(a) of the Federal Advisory Committee Act
relating to termination, shall not apply to the Council.
federal agencies
Sec. 1447. [(a) Each Federal agency (1) having jurisdiction
over any federally owned or maintained public water system or
(2) engaged in any activity resulting, or which may result in,
underground injection which endangers drinking water (within
the meaning of section 1421(d)(2)) shall be subject to, and
comply with, all Federal, State, and local requirements,
administrative authorities, and process and sanctions
respecting the provision of safe drinking water and respecting
any underground injection program in the same manner, and to
the same extent, as any nongovernmental entity. The preceding
sentence shall apply (A) to any requirement whether substantive
or procedural (including any recordkeeping or reporting
requirement, any requirement respecting permits, and any other
requirement whatsoever), (B) to the exercise of any Federal,
State, or local administrative authority, and (C) to any
process or sanction, whether enforced in Federal, State, or
local courts or in any other manner. This subsection shall
apply, notwithstanding any immunity of such agencies, under any
law or rule of law. No officer, agent, or employee of the
United States shall be personally liable for any civil penalty
under this title with respect to any act or omission within the
scope of his official duties.
(b) The Administrator shall waive compliance with
subsection (a) upon request of the Secretary of Defense and
upon a determination by the President that the requested waiver
is necessary in the interest of national security. The
Administrator shall maintain a written record of the basis upon
which such waiver was granted and make such record available
for in camera examination when relevant in a judicial
proceeding under this title. Upon the issuance of such a
waiver, the Administrator shall publish in the Federal Register
a notice that the waiver was granted for national security
purposes, unless, upon the request of the Secretary of Defense,
the Administrator determines to omit such publication because
the publication itself would be contrary to the interests of
national security, in which event the Administrator shall
submit notice to the Armed Services Committee of the Senate and
House of Representatives.]
(a) Compliance._
(1) In general.--Each Federal agency shall be subject
to, and comply with, all Federal, State, interstate,
and local substantive and procedural requirements,
administrative authorities, and process and sanctions
concerning the provision of safe drinking water or
underground injection in the same manner, and to the
same extent, as any nongovernmental entity is subject
to, and shall comply with, the requirements,
authorities, and process and sanctions.
(2) Administrative orders and penalties.--The
Federal, State, interstate, and local substantive and
procedural requirements, administrative authorities,
and process and sanctions referred to in paragraph (1)
include all administrative orders and all civil and
administrative penalties or fines, regardless of
whether the penalties or fines are punitive or coercive
in nature or are imposed for isolated, intermittent, or
continuing violations.
(3) Limited waiver of sovereign immunity.--The United
States expressly waives any immunity otherwise
applicable to the United States with respect to any
requirement, administrative authority, or process or
sanction referred to in paragraph (2) (including any
injunctive relief, administrative order, or civil or
administrative penalty or fine referred to in paragraph
(2), or reasonable service charge). The reasonable
service charge referred to in the preceding sentence
includes--
(A) a fee or charge assessed in connection
with the processing, issuance, renewal, or
amendment of a permit, variance, or exemption,
review of a plan, study, or other document, or
inspection or monitoring of a facility; and
(B) any other nondiscriminatory charge that
is assessed in connection with a Federal,
State, interstate, or local safe drinking water
regulatory program.
(4) Civil penalties.--No agent, employee, or officer
of the United States shall be personally liable for any
civil penalty under this subsection with respect to any
act or omission within the scope of the official duties
of the agent, employee, or officer.
(5) Criminal sanctions.--An agent, employee, or
officer of the United States may be subject to a
criminal sanction under a State, interstate, or local
law concerning the provision of drinking water or
underground injection. No department, agency, or
instrumentality of the executive, legislative, or
judicial branch of the Federal Government shall be
subject to a sanction referred to in the preceding
sentence.
(b) Waiver of Compliance._
(1) In general.--The President may waive compliance
with subsection (a) by any department, agency, or
instrumentality in the executive branch if the
President determines waiving compliance with such
subsection to be in the paramount interest of the
United States.
(2) Waivers due to lack of appropriations.--No waiver
described in paragraph (1) shall be granted due to the
lack of an appropriation unless the President has
specifically requested the appropriation as part of the
budgetary process and Congress has failed to make
available the requested appropriation.
(3) Period of waiver.--A waiver under this subsection
shall be for a period of not to exceed 1 year, but an
additional waiver may be granted for a period of not to
exceed 1 year on the termination of a waiver if the
President reviews the waiver and makes a determination
that it is in the paramount interest of the United
States to grant an additional waiver.
(4) Report.--Not later than January 31 of each year,
the President shall report to Congress on each waiver
granted pursuant to this subsection during the
preceding calendar year, together with the reason for
granting the waiver.
(c)(1) Nothing in the Safe Drinking Water Amendments of
1977 shall be construed to alter or affect the status of
American Indian lands or water rights nor to waive any
sovereignty over Indian lands guaranteed by treaty or statute.
(2) For the purposes of this Act, the term `Federal agency'
shall not be construed to refer to or include any American
Indian tribe, nor to the Secretary of the Interior in his
capacity as trustee of Indian lands.
(d) Administrative Penalty Orders._
(1) In general.--If the Administrator finds that a
Federal agency has violated an applicable requirement
under this title, the Administrator may issue a penalty
order assessing a penalty against the Federal agency.
(2) Penalties.--The Administrator may, after notice
to the agency, assess a civil penalty against the
agency in an amount not to exceed $25,000 per day per
violation.
(3) Procedure.--Before an administrative penalty
order issued under this subsection becomes final, the
Administrator shall provide the agency an opportunity
to confer with the Administrator and shall provide the
agency notice and an opportunity for a hearing on the
record in accordance with chapters 5 and 7 of title 5,
United States Code.
(4) Public review._
(A) In general.--Any interested person may
obtain review of an administrative penalty
order issued under this subsection. The review
may be obtained in the United States District
Court for the District of Columbia or in the
United States District Court for the district
in which the violation is alleged to have
occurred by the filing of a complaint with the
court within the 30-day period beginning on the
date the penalty order becomes final. The
person filing the complaint shall
simultaneously send a copy of the complaint by
certified mail to the Administrator and the
Attorney General.
(B) Record.--The Administrator shall promptly
file in the court a certified copy of the
record on which the order was issued.
(C) Standard of review.--The court shall not
set aside or remand the order unless the court
finds that there is not substantial evidence in
the record, taken as a whole, to support the
finding of a violation or that the assessment
of the penalty by the Administrator constitutes
an abuse of discretion.
(D) Prohibition on additional penalties.--The
court may not impose an additional civil
penalty for a violation that is subject to the
order unless the court finds that the
assessment constitutes an abuse of discretion
by the Administrator.
(e) Washington Aqueduct.--The Washington Aqueduct
Authority, the Army Corps of Engineers, and the Secretary of
the Army shall not pass the cost of any penalty assessed under
this title on to any customer, user, or other purchaser of
drinking water from the Washington Aqueduct system, including
finished water from the Dalecarlia or McMillan treatment plant.
judicial review
Sec. 1448. (a) A petition for review of--
(1) actions pertaining to the establishment of
national primary drinking water regulations (including
maximum contaminant level goals) may be filed only in
the United States Court of Appeals for the District of
Columbia circuit; and
(2) any other final action of the Administrator under
this Act may be filed in the circuit in which the
petitioner resides or transacts business which is
directly affected by the action.
Any such petition shall be filed within the 45-day period
beginning on the date of the promulgation of the regulation [or
issuance of the order] or any other final Agency action with
respect to which review is sought or on the date of the
determination with respect to which review is sought, and may
be filed after the expiration of such 45-day period if the
petition is based solely on grounds arising after the
expiration of such period. Action of the Administrator with
respect to which review could have been obtained under this
subsection shall not be subject to judicial review in any civil
or criminal proceeding for enforcement or in any civil action
to enjoin enforcement. In any petition concerning the
assessment of a civil penalty pursuant to section
1414(g)(3)(B), the petitioner shall simultaneously send a copy
of the complaint by certified mail to the Administrator and the
Attorney General. The court shall set aside and remand the
penalty order if the court finds that there is not substantial
evidence in the record to support the finding of a violation or
that the assessment of the penalty by the Administrator
constitutes an abuse of discretion.
(b) The United States district courts shall have
jurisdiction of actions brought to review (1) the granting of,
or the refusing to grant, a variance or exemption under section
1415 or 1416 or (2) the requirements of any schedule prescribed
for a variance or exemption under such section or the failure
to prescribe such a schedule. Such an action may only be
brought upon a petition for review filed with the court within
the 45-day period beginning on the date the action sought to be
reviewed is taken or, in the case of a petition to review the
refusal to grant a variance or exemption or the failure to
prescribe a schedule, within the 45-day period beginning on the
date action is required to be taken on the variance, exemption,
or schedule, as the case may be. A petition for such review may
be filed after the expiration of such period if the petition is
based solely on grounds arising after the expiration of such
period. Action with respect to which review could have been
obtained under this subsection shall not be subject to judicial
review in any civil or criminal proceeding for enforcement or
in any civil action to enjoin enforcement.
(c) In any judicial proceeding in which review is sought of
a determination under this title required to be made on the
record after notice and opportunity for hearing, if any party
applies to the court for leave to adduce additional evidence
and shows to the satisfaction of the court that such additional
evidence is material and that there were reasonable grounds for
the failure to adduce such evidence in the proceeding before
the Administrator, the court may order such additional evidence
(and evidence in rebuttal thereof) to be taken before the
Administrator, in such manner and upon such terms and
conditions as the court may deem proper. The Administrator may
modify his findings as to the facts, or make new findings, by
reason of the additional evidence so taken, and he shall file
such modified or new findings, and his recommendation, if any,
for the modification or setting aside of his original
determination, with the return of such additional evidence.
citizen's civil action
Sec. 1449. (a) Except as provided in subsection (b) of this
section, any person may commence a civil action on his own
behalf--
(1) against any person (including (A) the United
States, and (B) any other governmental instrumentality
or agency to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be in
violation of any requirement prescribed by or under
this title[, or];
(2) against the Administrator where there is alleged
a failure of the Administrator to perform any act or
duty under this title which is not discretionary with
the Administrator[.] ; or
(3) for the collection of a penalty (and associated
costs and interest) against any Federal agency that
fails, by the date that is 1 year after the effective
date of a final order to pay a penalty assessed by the
Administrator under section 1447(d), to pay the
penalty.
No action may be brought under paragraph (1) against a public
water system for a violation of a requirement prescribed by or
under this title which occurred within the 27-month period
beginning on the first day of the month in which this title is
enacted. The United States district courts shall have
jurisdiction, without regard to the amount in controversy or
the citizenship of the parties, to enforce in an action brought
under this subsection any requirement prescribed by or under
this title or to order the Administrator to perform an act, or
duty described in paragraph (2), as the case may be.
(b) No civil action may be commenced--
(1) under subsection (a)(1) of this section
respecting violation of a requirement prescribed by or
under this title--
(A) prior to sixty days after the plaintiff
has given notice of such violation (i) to the
Administrator, (ii) to any alleged violator of
such requirement and (iii) to the State in
which the violation occurs, or
(B) if the Administrator, the Attorney
General, or the State has commenced and is
diligently prosecuting a civil action in a
court of the United States to require
compliance with such requirement, but in any
such action in a court of the United States any
person may intervene as a matter of right; or
(2) under subsection (a)(2) of this section prior to
sixty days after the plaintiff has given notice of such
action to the Administrator.
Notice required by this subsection shall be given in such
manner as the Administrator shall prescribe by regulation. No
person may commence a civil action under subsection (a) to
require a State to prescribe a schedule under section 1415 or
1416 for a variance or exemption, unless such person shows to
the satisfaction of the court that the State has in a
substantial number of cases failed to prescribe such schedules.
(c) In any action under this section, the Administrator or
the Attorney General, if not a party, may intervene as a matter
of right.
(d) The court, in issuing any final order in any action
brought under subsection (a) of this section, may award costs
of litigation (including reasonable attorney and expert witness
fees) to any party whenever the court determines such an award
is appropriate. The court may, if a temporary restraining order
or preliminary injunction is sought, require the filing of a
bond or equivalent security in accordance with the Federal
Rules of Civil Procedure.
(e) Nothing in this section shall restrict any right which
any person (or class of persons) may have under any statute or
common law to seek enforcement of any requirement prescribed by
or under this title or to seek any other relief. Nothing in
this section or in any other law of the United States shall be
construed to prohibit, exclude, or restrict any State or local
government from--
(1) bringing any action or obtaining any remedy or
sanction in any State or local court, or
(2) bringing any administrative action or obtaining
any administrative remedy or sanction,
against any agency of the United States under State or local
law to enforce any requirement respecting the provision of safe
drinking water or respecting any underground injection control
program. Nothing in this section shall be construed to
authorize judicial review of regulations or orders of the
Administrator under this title, except as provided in section
1448. For provisions providing for application of certain
requirements to such agencies in the same manner as to
nongovernmental entities, see section 1447.
general provisions
Sec. 1450. (a)(1) The Administrator is authorized to
prescribe such regulations as are necessary or appropriate to
carry out his functions under this title.
(2) The Administrator may delegate any of his functions
under this title (other than prescribing regulations) to any
officer or employee of the Agency.
(b) The Administrator, with the consent of the head of any
other agency of the United States, may utilize such officers
and employees of such agency as he deems necessary to assist
him in carrying out the purposes of this title.
(c) Upon the request of a State or interstate agency, the
Administrator may assign personnel of the Agency to such State
or interstate agency for the purposes of carrying out the
provisions of this title.
(d)(1) The Administrator may make payments of grants under
this title (after necessary adjustment on account of previously
made underpayments or overpayments) in advance or by way of
reimbursement, and in such installments and on such conditions
as he may determine.
(2) Financial assistance may be made available in the form
of grants only to individuals and nonprofit agencies or
institutions. For purposes of this paragraph, the term
`nonprofit agency or institution' means an agency or
institution no part of the net earnings of which inure, or may
lawfully inure, to the benefit of any private shareholder or
individual.
(e) The Administrator shall take such action as may be
necessary to assure compliance with provisions of the Act of
March 3, 1931 (known as the Davis-Bacon Act; 40 U.S.C. 276a-
276a(5)). The Secretary of Labor shall have, with respect to
the labor standards specified in this subsection, the authority
and functions set forth in Reorganization Plan Numbered 14 of
1950 (15 F.R. 3176; 64 Stat. 1267) and section 2 of the Act of
June 13, 1934 (40 U.S.C. 276c).
(f) The Administrator shall request the Attorney General to
appear and represent him in any civil action instituted under
this title to which the Administrator is a party. Unless,
within a reasonable time, the Attorney General notifies the
Administrator that he will appear in such action, attorneys
appointed by the Administrator shall appear and represent him.
(g)The provisions of this title shall not be construed as
affecting any authority of the Administrator under part G of
title III of this Act.
[(h) Not later than April 1 of each year, the Administrator
shall submit to the Committee on Commerce of the Senate and the
Committee on Interstate and Foreign Commerce of the House of
Representatives a report respecting the activities of the
Agency under this title and containing such recommendations for
legislation as he considers necessary. The report of the
Administrator under this subsection which is due not later than
April 1, 1975, and each subsequent report of the Administrator
under this subsection shall include a statement on the actual
and anticipated cost to public water systems in each State of
compliance with the requirements of this title. The Office of
Management and Budget may review any report required by this
subsection before its submission to such committees of
Congress, but the Office may not revise any such report,
require any revision in any such report, or delay its
submission beyond the day prescribed for its submission, and
may submit to such committees of Congress its comments
respecting any such report.]
(h) Report to Congress on Private Drinking Water.--The
Administrator shall conduct a study to determine the extent and
seriousness of contamination of private sources of drinking
water that are not regulated under this title. Not later than 3
years after the date of enactment of the Safe Drinking Water
Act Amendments of 1995, the Administrator shall submit to
Congress a report that includes the findings of the study and
recommendations by the Administrator concerning responses to
any problems identified under the study. In designing and
conducting the study, including consideration of research
design, methodology, and conclusions and recommendations, the
Administrator shall consult with experts outside the Agency,
including scientists, hydrogeologists, well contractors and
suppliers, and other individuals knowledgeable in ground water
protection and remediation.
(i)(1) No employer may discharge any employee or otherwise
discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of employment
because the employee (or any person acting pursuant to a
request of the employee) has--
(A) commenced, caused to be commenced, or is
about to commence or cause to be commenced a
proceeding under this title or a proceeding for
the administration or enforcement of drinking
water regulations or underground injection
control programs of a State.
(B) testified or is about to testify in any
such proceeding, or
(C) assisted or participated or is about to
assist or participate in any manner in such a
proceeding or in any other action to carry out
the purposes of this title.
(2)(A) Any employee who believes that he has been
discharged or otherwise discriminated against by any person in
violation of paragraph (1) may, within 30 days after such
violation occurs, file (or have any person file on his behalf)
a complaint with the Secretary of Labor (hereinafter in this
subsection referred to as the ``Secretary'') alleging such
discharge or discrimination. Upon receipt of such a complaint,
the Secretary shall notify the person named in the complaint of
the filing of the complaint.
(B)(i) Upon receipt of a complaint filed under subparagraph
(A), the Secretary shall conduct an investigation of the
violation alleged in the complaint. Within 30 days of the
receipt of such complaint, the Secretary shall complete such
investigation and shall notify in writing the complainant (and
any person acting in his behalf) and the person alleged to have
committed such violation of the results of the investigation
conducted pursuant to this subparagraph. Within 90 days of the
receipt of such complaint the Secretary shall, unless the
proceeding on the complaint is terminated by the Secretary on
the basis of a settlement entered into by the Secretary and the
person alleged to have committed such violation, issue an order
either providing the relief prescribed by clause (ii) or
denying the complaint. An order of the Secretary shall be made
on the record after notice and opportunity for agency hearing.
The Secretary may not enter into a settlement terminating a
proceeding on a complaint without the participation and consent
of the complainant.
(ii) If in response to a complaint filed under subparagraph
(A) the Secretary determines that a violation of paragraph (1)
has occurred, the Secretary shall order (I) the person who
committed such violation to take affirmative action to abate
the violation, (II) such person to reinstate the complainant to
his former position together with the compensation (including
back pay), terms, conditions, and privileges of his employment,
(III) compensatory damages, and (IV) where appropriate,
exemplary damages. If such an order is issued, the Secretary,
at the request of the complainant, shall assess against the
person against whom the order is issued a sum equal to the
aggregate amount of all costs and expenses (including
attorneys' fees) reasonably incurred, as determined by the
Secretary, by the complainant for, or in connection with, the
bringing of the complaint upon which the order was issued.
(3)(A) Any person adversely affected or aggrieved by an
order issued under paragraph (2) may obtain review of the order
in the United States Court of Appeals for the circuit in which
the violation, with respect to which the order was issued,
allegedly occurred. The petition for review must be filed
within sixty days from the issuance of the Secretary's order.
Review shall conform to chapter 7 of title 5 of the United
States Code. The commencement of proceedings under this
subparagraph shall not, unless ordered by the court, operate as
a stay of the Secretary's order.
(B) An order of the Secretary with respect to which review
could have been obtained under subparagraph (A) shall not be
subject to judicial review in any criminal or other civil
proceeding.
(4) Whenever a person has failed to comply with an order
issued under paragraph (2)(B), the Secretary shall file a civil
action in the United States District Court for the district in
which the violation was found to occur to enforce such order.
In actions brought under this paragraph, the district courts
shall have jurisdiction to grant all appropriate relief
including, but not limited to, injunctive relief, compensatory,
and exemplary damages. Civil actions filed under this paragraph
shall be heard and decided expeditiously.
(5) Any nondiscretionary duty imposed by this section is
enforceable in mandamus proceeding brought under section 1361
of title 28 of the United States Code.
(6) Paragraph (1) shall not apply with respect to any
employee who, acting without direction from his employer (or
the employer's agent), deliberately causes a violation of any
requirement of this title.
[sec. 1451. indian tribes.]
indian tribes
Sec. 1451. (a) In General.--Subject to the provisions of
subsection (b), the Administrator--
(1) is authorized to treat Indian Tribes as States
under this title,
(2) may delegate such Tribes primary enforcement
responsibility for public water systems and for
underground injection control, and
(3) may provide such Tribes grant and contract
assistance to carry out functions provided by this
title.
(b) EPA Regulations.--
a) Specific Provisions.--The Administrator
shall, within 18 months after the enactment of
the Safe Drinking Water Act Amendments of 1986,
promulgate final regulations specifying those
provisions of this title for which it is
appropriate to treat Indian Tribes as States.
Such treatment shall be authorized only if:
(A) the Indian Tribe is recognized by the
Secretary of the Interior and has a governing
body carrying out substantial governmental
duties and powers;
(B) the functions to be exercised by the
Indian Tribe are within the area of the Tribal
Government's jurisdiction; and
(C) the Indian Tribe is reasonably expected
to be capable, in the Administrator's judgment,
of carrying out the functions to be exercised
in a manner consistent with the terms and
purposes of this title and of all applicable
regulations.
(2) Provisions Where Treatment as State
Inappropriate.--For any provision of this title where
treatment of Indian Tribes as identical to States is
inappropriate, administratively infeasible or otherwise
inconsistent with the purposes of this title, the
Administrator may include in the regulations
promulgated under this section, other means for
administering such provision in a manner that will
achieve the purpose of the provision. Nothing in this
section shall be construed to allow Indian Tribes to
assume or maintain primary enforcement responsibility
for public water systems or for underground injection
control in a manner less protective of the health of
persons than such responsibility may be assumed or
maintained by a State. An Indian tribe shall not be
required to exercise criminal enforcement jurisdiction
for purposes of complying with the preceding sentence.
Part F--Additional Requirements To Regulate The Safety of Drinking
Water
[sec. 1461. definitions.]
definitions
Sec. 1461. As used in this part--
(1) Drinking water cooler.--The term `drinking water
cooler' means any mechanical device affixed to drinking water
supply plumbing which actively cools water for human
consumption.
(2) Lead free.--The term `lead free' means, with respect to
a drinking water cooler, that each part or component of the
cooler which may come in contact with drinking water contains
not more than 8 percent lead, except that no drinking water
cooler which contains any solder, flux, or storage tank
interior surface which may come in contact with drinking water
shall be considered lead free if the solder, flux, or storage
tank interior surface contains more than 0.2 percent lead. The
Administrator may establish more stringent requirements for
treating any part or component of a drinking water cooler as
lead free for purposes of this part whenever he determines that
any such part may constitute an important source of lead in
drinking water.
(3) Local educational agency.--The term `local educational
agency' means--
(A) any local educational agency as defined in
section 198 of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 3381),
(B) the owner of any private, nonprofit elementary or
secondary school building, and
(C) the governing authority of any school operating
under the defense department's education system
provided for under the Defense Dependent's Education
Act of 1978 (20 U.S.C. 921 and following).
(4) Repair.--The term `repair' means, with respect to a
drinking water cooler, to take such corrective action as is
necessary to ensure that water cooler is lead free.
(5) Replacement.--The term `replacement', when used with
respect to a drinking water cooler, means the permanent removal
of the water cooler and the installation of a lead free water
cooler.
(6) School.--The term `school' means any elementary school
or secondary school as defined in section 198 of the Elementary
and Secondary Education Act 1965 (20 U.S.C.2854) and any
kindergarten or day care facility.
(7) Lead-lined tanks.--The term `lead-lined tank' means a
water reservoir container in a drinking water cooler which
container is constructed of lead or which has an interior
surface which is not leadfree.
[sec. 1462. recall of drinking water coolers with lead-lined tanks.]
recall of drinking water coolers with lead-lined tanks
Sec. 1462. For purposes of the Consumer Product Safety Act,
all drinking water coolers identified by the Administrator on
the list under section 1463 as having a lead-lined tank shall
be considered to be imminently hazardous consumer products
within the meaning of section 12 of such Act (15 U.S.C. 2061).
After notice and opportunity for comment, including a public
hearing, the Consumer Product Safety Commission shall issue an
order requiring the manufacturers and importers of such coolers
to repair, replace, or recall and provide a refund for such
coolers within 1 year after the enactment of the Lead
Contamination Control Act of 1988. For purposes of enforcement,
such order shall be treated as an order under section 15(d) of
the Act (15 U.S.C. 2064(d)).
[sec. 1463. drinking water coolers containing lead.]
drinking water coolers containing lead
Sec. 1463. (a) Publications of Lists.--The Administrator
shall, after notice and opportunity for public comment,
identify each brand and model of drinking water cooler which is
not lead free, including each brand and model that has a lead-
lined tank. For purposes of identifying the brand and model of
drinking water cooler under this subsection, the Administrator
shall use the best information available to the Environmental
Protection Agency. Within 100 days after the enactment of this
section, the Administrator shall publish a list of each brand
and model of drinking water cooler identified under this
subsection. Such list shall separately identify each brand and
model of cooler which has a lead-lined tank. The Administrator
shall continue to gather information regarding lead in drinking
water coolers and shall revise and republish the list from time
to time as may be appropriate as new information or analysis
becomes available regarding lead contamination in drinking
water coolers.
(b) Prohibition.--No person may sell in interstate
commerce, or manufacture for sale in interstate commerce, any
drinking water cooler listed under subsection (a) or any other
drinking water cooler which is not lead free, including a lead-
lined drinking water cooler.
(c) Criminal Penalty.--Any person who knowingly violates
the prohibition contained in subsection (b) shall be imprisoned
for not more than 5 years, or fined in accordance with title 18
of the United States Code, or both.
(d) Civil Penalty.--The Administrator may bring a civil
action in the appropriate United States District Court (as
determined under the provisions of title 28 of the United
States Code) to impose a civil penalty on any person who
violates subsection (b). In any such action the court may
impose on such person a civil penalty of not more than $5,000
($50,000 in the case of a second or subsequent violation).
[sec. 1464. lead contamination in school drinking water.]
lead contamination in school drinking water
Sec. 1464. (a) Distribution of Drinking Water Cooler
List.--Within 100 days after the enactment of this section, the
Administrator shall distribute to the States a list of each
brand and model of drinking water cooler identified and listed
by the Administrator under section 1463(a).
(b) Guidance Document and Testing Protocol.--The
Administrator shall publish a guidance document and a testing
protocol to assist schools in determining the source and degree
of lead contamination in school drinking water supplies and in
remedying such contamination. The guidance document shall
include guidelines for sample preservation. The guidance
document shall also include guidelines for sample preservation.
The guidance documents shall also include guidance to assist
States, schools, and the general public in ascertaining the
levels of lead contamination in drinking water coolers and in
taking appropriate action to reduce or eliminate such
contamination. The guidance document shall contain a testing
protocol for the identification of drinking water coolers which
contribute to lead contamination in drinking water. Such
document and protocol may be revised, republished and
redistributed as the Administrator deems necessary. The
Administrator shall distribute the guidance document and
testing protocol to the states within 100 days after the
enactment of this section.
(c) Dissemination to Schools, Etc.--Each State shall
provide for the dissemination to local educational agencies,
private nonprofit elementary or secondary schools and to day
care centers of the guidance document and testing protocol
published under subsection (b), together with the list of
drinking water coolers published under section 1463(a).
(d) Remedial Action Program.--
(1) Testing and remedying lead contamination.--Within
9 months after the enactment of this section, each
State shall establish a program, consistent with this
section, to assist local educational agencies in
testing for, and remedying, lead contamination in
drinking water from coolers and from other sources of
lead contamination at schools under the jurisdiction of
such agencies.
(2) Public availability.--A copy of the results of
any testing under paragraph (1) shall be available in
the administrative offices of the local educational
agency for inspection by the public, including
teachers, other school personnel, and parents. The
local educational agency shall notify parent, teacher,
and employee organizations of the availability of such
testing results.
(3) Coolers.--In the case of drinking water coolers,
such program shall include measures for the reduction
or elimination of lead contamination from those water
coolers which are not lead free and which are not
located in schools. Such measures shall be adequate to
ensure that within 15 months after the enactment of
this subsection all such water coolers in schools under
the jurisdiction of such agencies are repaired,
replaced, permanently removed, or rendered inoperable
unless the cooler is tested and found (within the
limits of testing accuracy) not to contribute lead to
drinking water.
[sec. 1465. federal assistance for state programs regarding lead
contamination in school drinking water.]
federal assistance for state programs regarding lead contamination in
school drinking water
Sec. 1465. (a) School Drinking Water Programs.--The
Administrator shall make grants to States to establish and
carry out State programs under section 1464 to assist local
educational agencies in testing for, and remedying, lead
contamination in drinking water from drinking water coolers and
from other sources of lead contamination at schools under the
jurisdiction of such agencies. Such grants may be used by
States to reimburse local educational agencies for expenses
incurred after the enactment of this section for such testing
and remedial.
(b) Limits.--Each grant under this section shall be used as
by the State for testing water coolers in accordance with
section 1464, for testing for lead contamination in other
drinking water supplies under section 1464, or for remedial
action under State programs under this section 1464. Not more
than 5 percent of the grant may be used for program
administration.
(c) Authorization of Appropriation.--There are authorized
to be appropriated to carry out this section not more than
$30,000,000 for fiscal year 1989, $30,000,000 for fiscal year
1990, and $30,000,000 for fiscal year 1991.
Part G_State Revolving Loan Funds
general authority
Sec. 1471. (a) Capitalization Grant Agreements.--The
Administrator shall offer to enter into an agreement with each
State to make capitalization grants to the State pursuant to
section 1472 (referred to in this part as `capitalization
grants') to establish a drinking water treatment State
revolving loan fund (referred to in this part as a `State loan
fund').
(b) Requirements of Agreements.--An agreement entered into
pursuant to this section shall establish, to the satisfaction
of the Administrator, that--
(1) the State has established a State loan fund that
complies with the requirements of this part;
(2) the State loan fund will be administered by an
instrumentality of the State that has the powers and
authorities that are required to operate the State loan
fund in accordance with this part;
(3) the State will deposit the capitalization grants
into the State loan fund;
(4) the State will deposit all loan repayments
received, and interest earned on the amounts deposited
into the State loan fund under this part, into the
State loan fund;
(5) the State will deposit into the State loan fund
an amount equal to at least 20 percent of the total
amount of each payment to be made to the State on or
before the date on which the payment is made to the
State, except as provided in subsection (c)(4);
(6) the State will use funds in the State loan fund
in accordance with an intended use plan prepared
pursuant to section 1474(b);
(7) the State and loan recipients that receive funds
that the State makes available from the State loan fund
will use accounting procedures that conform to
generally accepted accounting principles, auditing
procedures that conform to chapter 75 of title 31,
United States Code (commonly known as the `Single Audit
Act of 1984'), and such fiscal procedures as the
Administrator may prescribe; and
(8) the State has adopted policies and procedures to
ensure that loan recipients are reasonably likely to be
able to repay a loan.
(c) Administration of State Loan Funds._
(1) In general.--The authority to establish
assistance priorities for financial assistance provided
with amounts deposited into the State loan fund shall
reside in the State agency that has primary
responsibility for the administration of the State
program under section 1413, after consultation with
other appropriate State agencies (as determined by the
State).
(2) Financial administration.--A State may combine
the financial administration of the State loan fund
pursuant to this part with the financial administration
of a State water pollution control revolving fund
established by the State pursuant to title VI of the
Federal Water Pollution Control Act (33 U.S.C. 1381 et
seq.), or other State revolving funds providing
financing for similar purposes, if the Administrator
determines that the grants to be provided to the State
under this part, and the loan repayments and interest
deposited into the State loan fund pursuant to this
part, will be separately accounted for and used solely
for the purposes of and in compliance with the
requirements of this part.
(3) Transfer of funds._
(A) In general.--Notwithstanding any other
provision of law, a Governor of a State may--
(i) reserve up to 50 percent of a
capitalization grant made pursuant to
section 1472 and add the funds reserved
to any funds provided to the State
pursuant to section 601 of the Federal
Water Pollution Control Act (33 U.S.C.
1381); and
(ii) reserve in any year a dollar
amount up to the dollar amount that may
be reserved under clause (i) for that
year from capitalization grants made
pursuant to section 601 of such Act (33
U.S.C. 1381) and add the reserved funds
to any funds provided to the State
pursuant to section 1472.
(B) State match.--Funds reserved pursuant to
this paragraph shall not be considered to be a
State match of a capitalization grant required
pursuant to this title or the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.).
(4) Extended period.--Notwithstanding subsection
(b)(5), a State shall not be required to deposit a
State matching amount into the fund prior to the date
on which each payment is made for payments from funds
appropriated for fiscal years 1994, 1995, and 1996, if
the matching amounts for the payments are deposited
into the State fund prior to September 30, 1998.
capitalization grants
Sec. 1472. (a) General Authority.--The Administrator may
make grants to capitalize State loan funds to a State that has
entered into an agreement pursuant to section 1471.
(b) Formula for Allotment of Funds._
(1) In general.--Subject to subsection (c) and
paragraph (2), funds made available to carry out this
part shall be allotted to States that have entered into
an agreement pursuant to section 1471 in accordance
with--
(A) for each of fiscal years 1995 through
1997, a formula that is the same as the formula
used to distribute public water system
supervision grant funds under section 1443 in
fiscal year 1995, except that the minimum
proportionate share established in the formula
shall be 1 percent of available funds and the
formula shall be adjusted to include a minimum
proportionate share for the State of Wyoming;
and
(B) for fiscal year 1998 and each subsequent
fiscal year, a formula that allocates to each
State the proportional share of the State needs
identified in the most recent survey conducted
pursuant to section 1475(c), except that the
minimum proportionate share provided to each
State shall be the same as the minimum
proportionate share provided under subparagraph
(A).
(2) Other jurisdictions.--The formula established
pursuant to paragraph (1) shall reserve 0.5 percent of
the amounts made available to carry out this part for a
fiscal year for providing direct grants to the
jurisdictions, other than Indian Tribes, referred to in
subsection (f).
(c) Reservation of Funds for Indian Tribes._
(1) In general.--For each fiscal year, prior to the
allotment of funds made available to carry out this
part, the Administrator shall reserve 1.5 percent of
the funds for providing financial assistance to Indian
Tribes pursuant to subsection (f).
(2) Use of funds.--Funds reserved pursuant to
paragraph (1) shall be used to address the most
significant threats to public health associated with
public water systems that serve Indian Tribes, as
determined by the Administrator in consultation with
the Director of the Indian Health Service and Indian
Tribes.
(3) Needs assessment.--The Administrator, in
consultation with the Director of the Indian Health
Service and Indian Tribes, shall, in accordance with a
schedule that is consistent with the needs surveys
conducted pursuant to section 1475(c), prepare surveys
and assess the needs of drinking water treatment
facilities to serve Indian Tribes, including an
evaluation of the public water systems that pose the
most significant threats to public health.
(d) Technical Assistance for Small Systems._
(1) Definitions.--In this subsection:
(A) Small system.--The term `small system'
means a public water system that serves a
population of 10,000 or fewer.
(B) Technical assistance.--The term
`technical assistance' means assistance
provided by a State to a small system,
including assistance to potential loan
recipients and assistance for planning and
design, development and implementation of a
source water quality protection partnership
program, alternative supplies of drinking
water, restructuring or consolidation of a
small system, and treatment to comply with a
national primary drinking water regulation.
(2) Reservation of funds.--To provide technical
assistance pursuant to this subsection, each State may
reserve from capitalization grants received in any year
an amount that does not exceed the greater of--
(A) an amount equal to 2 percent of the
amount of the capitalization grants received by
the State pursuant to this section; or
(B) $300,000.
(e) Allotment Period._
(1) Period of availability for financial assistance._
(A) In general.--Except as provided in
subparagraph (B), the sums allotted to a State
pursuant to subsection (b) for a fiscal year
shall be available to the State for obligation
during the fiscal year for which the sums are
authorized and during the following fiscal
year.
(B) Funds made available for fiscal years
1995 and 1996.--The sums allotted to a State
pursuant to subsection (b) from funds that are
made available by appropriations for each of
fiscal years 1995 and 1996 shall be available
to the State for obligation during each of
fiscal years 1995 through 1998.
(2) Reallotment of unobligated funds.--Prior to
obligating new allotments made available to the State
pursuant to subsection (b), each State shall obligate
funds accumulated before a date that is 1 year prior to
the date of the obligation of a new allotment from loan
repayments and interest earned on amounts deposited
into a State loan fund. The amount of any allotment
that is not obligated by a State by the last day of the
period of availability established by paragraph (1)
shall be immediately reallotted by the Administrator on
the basis of the same ratio as is applicable to sums
allotted under subsection (b), except that the
Administrator may reserve and allocate 10 percent of
the remaining amount for financial assistance to Indian
Tribes in addition to the amount allotted under
subsection (c). None of the funds reallotted by the
Administrator shall be reallotted to any State that has
not obligated all sums allotted to the State pursuant
to this section during the period in which the sums
were available for obligation.
(3) Allotment of withheld funds.--All funds withheld
by the Administrator pursuant to subsection (g) and
section 1442(e)(3) shall be allotted by the
Administrator on the basis of the same ratio as is
applicable to funds allotted under subsection (b). None
of the funds allotted by the Administrator pursuant to
this paragraph shall be allotted to a State unless the
State has met the requirements of section 1418(a).
(f) Direct Grants._
(1) In general.--The Administrator is authorized to
make grants for the improvement of public water systems
of Indian Tribes, the District of Columbia, the United
States Virgin Islands, the Commonwealth of the Northern
Mariana Islands, American Samoa, and Guam and, if funds
are appropriated to carry out this part for fiscal year
1995, the Republic of Palau.
(2) Alaska native villages.--In the case of a grant
for a project under this subsection in an Alaska Native
village, the Administrator is also authorized to make
grants to the State of Alaska for the benefit of Native
villages. An amount not to exceed 4 percent of the
grant amount may be used by the State of Alaska for
project management.
(g) New System Capacity.--Beginning in fiscal year 1999,
the Administrator shall withhold the percentage prescribed in
the following sentence of each capitalization grant made
pursuant to this section to a State unless the State has met
the requirements of section 1418(a). The percentage withheld
shall be 5 percent for fiscal year 1999, 10 percent for fiscal
year 2000, and 15 percent for each subsequent fiscal year.
eligible assistance
Sec. 1473. (a) In General.--The amounts deposited into a
State loan fund, including any amounts equal to the amounts of
loan repayments and interest earned on the amounts deposited,
may be used by the State to carry out projects that are
consistent with this section.
(b) Projects Eligible for Assistance._
(1) In general.--The amounts deposited into a State
loan fund shall be used only for providing financial
assistance for capital expenditures and associated
costs (but excluding the cost of land acquisition
unless the cost is incurred to acquire land for the
construction of a treatment facility or for a
consolidation project) for--
(A) a project that will facilitate compliance
with national primary drinking water
regulations promulgated pursuant to section
1412;
(B) a project that will facilitate the
consolidation of public water systems or the
use of an alternative source of water supply;
(C) a project that will upgrade a drinking
water treatment system; and
(D) the development of a public water system
to replace private drinking water supplies if
the private water supplies pose a significant
threat to human health.
(2) Operator training.--Associated costs eligible for
assistance under this part include the costs of
training and certifying the persons who will operate
facilities that receive assistance pursuant to
paragraph (1).
(3) Limitation._
(A) In general.--Except as provided in
subparagraph (B), no assistance under this part
shall be provided to a public water system
that--
(i) does not have the technical,
managerial, and financial capability to
ensure compliance with the requirements
of this title; and
(ii) has a history of--
(I) past violations of any
maximum contaminant level or
treatment technique established
by a regulation or a variance;
or
(II) significant
noncompliance with monitoring
requirements or any other
requirement of a national
primary drinking water
regulation or variance.
(B) Restructuring.--A public water system
described in subparagraph (A) may receive
assistance under this part if--
(i) the owner or operator of the
system agrees to undertake feasible and
appropriate changes in operations
(including ownership, management,
accounting, rates, maintenance,
consolidation, alternative water
supply, or other procedures) if the
State determines that such measures are
necessary to ensure that the system has
the technical, managerial, and
financial capability to comply with the
requirements of this title over the
long term; and
(ii) the use of the assistance will
ensure compliance.
(c) Eligible Public Water Systems.--A State loan fund, or
the Administrator in the case of direct grants under section
1472(f), may provide financial assistance only to community
water systems, publicly owned water systems (other than systems
owned by Federal agencies), and nonprofit noncommunity water
systems.
(d) Types of Assistance.--Except as otherwise limited by
State law, the amounts deposited into a State loan fund under
this section may be used only--
(1) to make loans, on the condition that--
(A) the interest rate for each loan is less
than or equal to the market interest rate,
including an interest free loan;
(B) principal and interest payments on each
loan will commence not later than 1 year after
completion of the project for which the loan
was made, and each loan will be fully amortized
not later than 20 years after the completion of
the project, except that in the case of a
disadvantaged community (as defined in
subsection (e)(1)), a State may provide an
extended term for a loan, if the extended
term--
(i) terminates not later than the
date that is 30 years after the date of
project completion; and
(ii) does not exceed the expected
design life of the project;
(C) the recipient of each loan will establish
a dedicated source of revenue for the repayment
of the loan; and
(D) the State loan fund will be credited with
all payments of principal and interest on each
loan;
(2) to buy or refinance the debt obligation of a
municipality or an intermunicipal or interstate agency
within the State at an interest rate that is less than
or equal to the market interest rate in any case in
which a debt obligation is incurred after October 14,
1993, or to refinance a debt obligation for a project
constructed to comply with a regulation established
pursuant to an amendment to this title made by the Safe
Drinking Water Act Amendments of 1986 (Public Law 99--
339; 100 Stat. 642);
(3) to guarantee, or purchase insurance for, a local
obligation (all of the proceeds of which finance a
project eligible for assistance under subsection (b))
if the guarantee or purchase would improve credit
market access or reduce the interest rate applicable to
the obligation;
(4) as a source of revenue or security for the
payment of principal and interest on revenue or general
obligation bonds issued by the State if the proceeds of
the sale of the bonds will be deposited into the State
loan fund;
(5) as a source of revenue or security for the
payment of interest on a local obligation (all of the
proceeds of which finance a project eligible for
assistance under subsection (b)); and
(6) to earn interest on the amounts deposited into
the State loan fund.
(e) Assistance for Disadvantaged Communities._
(1) Definition of disadvantaged community.--In this
subsection, the term `disadvantaged community' means
the service area of a public water system that meets
affordability criteria established after public review
and comment by the State in which the public water
system is located. The Administrator may publish
information to assist States in establishing
affordability criteria.
(2) Loan subsidy.--Notwithstanding subsection (d), in
any case in which the State makes a loan pursuant to
subsection (d) to a disadvantaged community or to a
community that the State expects to become a
disadvantaged community as the result of a proposed
project, the State may provide additional subsidization
(including forgiveness of principal).
(3) Total amount of subsidies.--For each fiscal year,
the total amount of loan subsidies made by a State
pursuant to paragraph (2) may not exceed 30 percent of
the amount of the capitalization grant received by the
State for the year.
(f) Source Water Quality Protection and Capacity
Development._
(1) In general.--Notwithstanding subsection (b)(1), a
State may--
(A) provide assistance, only in the form of a
loan, to--
(i) any public water system described
in subsection (c) to acquire land or a
conservation easement from a willing
seller or grantor, if the purpose of
the acquisition is to protect the
source water of the system from
contamination; or
(ii) any community water system
described in subsection (c) to provide
funding in accordance with section
1419(d)(1)(C)(i);
(B) provide assistance, including technical
and financial assistance, to any public water
system as part of a capacity development
strategy developed and implemented in
accordance with section 1418(c); and
(C) make expenditures from the capitalization
grant of the State for fiscal years 1996 and
1997 to delineate and assess source water
protection areas in accordance with section
1419, except that funds set aside for such
expenditure shall be obligated within 4 fiscal
years.
(2) Limitation.--For each fiscal year, the total
amount of assistance provided and expenditures made by
a State under this subsection may not exceed 15 percent
of the amount of the capitalization grant received by
the State for that year and may not exceed 10 percent
of that amount for any one of the following activities:
(A) To acquire land or conservation easements
pursuant to paragraph (1)(A)(i).
(B) To provide funding to implement
recommendations of source water quality
protection partnerships pursuant to paragraph
(1)(A)(ii).
(C) To provide assistance through a capacity
development strategy pursuant to paragraph
(1)(B).
(D) To make expenditures to delineate or
assess source water protection areas pursuant
to paragraph (1)(C).
state loan fund administration
Sec. 1474. (a) Administration, Technical Assistance, and
Management._
(1) Administration.--Each State that has a State loan
fund is authorized to expend from the annual
capitalization grant of the State a reasonable amount,
not to exceed 4 percent of the capitalization grant
made to the State, for the costs of the administration
of the State loan fund.
(2) State program management assistance._
(A) In general.--Each State that has a loan
fund is authorized to expend from the annual
capitalization grant of the State an amount,
determined pursuant to this paragraph, to carry
out the public water system supervision program
under section 1443(a) and to--
(i) administer, or provide technical
assistance through, source water
quality protection programs, including
a partnership program under section
1419; and
(ii) develop and implement a capacity
development strategy under section
1418(c) in the State.
(B) Limitation.--Amounts expended by a State
pursuant to this paragraph for any fiscal year
may not exceed an amount that is equal to the
amount of the grant funds available to the
State for that fiscal year under section
1443(a).
(C) State funds.--For any fiscal year, funds
may not be expended pursuant to this paragraph
unless the Administrator determines that the
amount of State funds made available to carry
out the public water system supervision program
under section 1443(a) for the fiscal year is
not less than the amount of State funds made
available to carry out the program for fiscal
year 1993.
(b) Intended Use Plans._
(1) In general.--After providing for public review
and comment, each State that has entered into a
capitalization agreement pursuant to this part shall
annually prepare a plan that identifies the intended
uses of the amounts available to the State loan fund of
the State.
(2) Contents.--An intended use plan shall include--
(A) a list of the projects to be assisted in
the first fiscal year that begins after the
date of the plan, including a description of
the project, the expected terms of financial
assistance, and the size of the community
served;
(B) the criteria and methods established for
the distribution of funds; and
(C) a description of the financial status of
the State loan fund and the short-term and
long-term goals of the State loan fund.
(3) Use of funds._
(A) In general.--An intended use plan shall
provide, to the maximum extent practicable,
that priority for the use of funds be given to
projects that--
(i) address the most serious risk to
human health;
(ii) are necessary to ensure
compliance with the requirements of
this title (including requirements for
filtration); and
(iii) assist systems most in need on
a per household basis according to
State affordability criteria.
(B) List of projects.--Each State shall,
after notice and opportunity for public
comment, publish and periodically update a list
of projects in the State that are eligible for
assistance under this part, including the
priority assigned to each project and, to the
extent known, the expected funding schedule for
each project.
state loan fund management
Sec. 1475. (a) In General.--Not later than 1 year after the
date of enactment of this part, and annually thereafter, the
Administrator shall conduct such reviews and audits as the
Administrator considers appropriate, or require each State to
have the reviews and audits independently conducted, in
accordance with the single audit requirements of chapter 75 of
title 31, United States Code.
(b) State Reports.--Not later than 2 years after the date
of enactment of this part, and every 2 years thereafter, each
State that administers a State loan fund shall publish and
submit to the Administrator a report on the activities of the
State under this part, including the findings of the most
recent audit of the State loan fund.
(c) Drinking Water Needs Survey and Assessment.--Not later
than 1 year after the date of enactment of this part, and every
4 years thereafter, the Administrator shall submit to Congress
a survey and assessment of the needs for facilities in each
State eligible for assistance under this part. The survey and
assessment conducted pursuant to this subsection shall--
(1) identify, by State, the needs for projects or
facilities owned or controlled by community water
systems eligible for assistance under this part on the
date of the assessment (other than refinancing for a
project pursuant to section 1473(d)(2));
(2) estimate the needs for eligible facilities over
the 20-year period following the date of the
assessment;
(3) identify, by size category, the population served
by public water systems with needs identified pursuant
to paragraph (1); and
(4) include such other information as the
Administrator determines to be appropriate.
(d) Evaluation.--The Administrator shall conduct an
evaluation of the effectiveness of the State loan funds through
fiscal year 1999. The evaluation shall be submitted to Congress
at the same time as the President submits to Congress, pursuant
to section 1108 of title 31, United States Code, an
appropriations request for fiscal year 2001 relating to the
budget of the Environmental Protection Agency.
enforcement
Sec. 1476. The failure or inability of any public water
system to receive funds under this part or any other loan or
grant program, or any delay in obtaining the funds, shall not
alter the obligation of the system to comply in a timely manner
with all applicable drinking water standards and requirements
of this title.
regulations and guidance
Sec. 1477. The Administrator shall publish such guidance
and promulgate such regulations as are necessary to carry out
this part, including guidance and regulations to ensure that--
(1) each State commits and expends funds from the State
loan fund in accordance with the requirements of this part and
applicable Federal and State laws; and
(2) the States and eligible public water systems that
receive funds under this part use accounting procedures that
conform to generally accepted accounting principles, auditing
procedures that conform to chapter 75 of title 31, United
States Code (commonly known as the `Single Audit Act of 1984'),
and such fiscal procedures as the Administrator may prescribe.
authorization of appropriations
Sec. 1478. (a) General Authorization.--There are
authorized to be appropriated to the Environmental Protection
Agency to carry out this part $600,000,000 for fiscal year 1994
and $1,000,000,000 for each of fiscal years 1995 through 2003.
(b) Health Effects Research.--From funds appropriated
pursuant to this section for each fiscal year, the
Administrator shall reserve $10,000,000 for health effects
research on drinking water contaminants authorized by section
1442. In allocating funds made available under this subsection,
the Administrator shall give priority to research concerning
the health effects of cryptosporidium, disinfection byproducts,
and arsenic, and the implementation of a research plan for
subpopulations at greater risk of adverse effects pursuant to
section 1442(l).
(c) Monitoring for Unregulated Contaminants.--From funds
appropriated pursuant to this section for each fiscal year
beginning with fiscal year 1997, the Administrator shall
reserve $2,000,000 to pay the costs of monitoring for
unregulated contaminants under section 1445(a)(2)(D).
(d) Small System Technical Assistance._
(1) In general.--Subject to paragraph (2), from funds
appropriated pursuant to this section for each fiscal
year for which the appropriation made pursuant to
subsection (a) exceeds $800,000,000, the Administrator
shall reserve to carry out section 1442(g) an amount
that is equal to any amount by which the amount made
available to carry out section 1442(g) is less than the
amount referred to in the third sentence of section
1442(g).
(2) Maximum amount.--For each fiscal year, the amount
reserved under paragraph (1) shall be not greater than
an amount equal to the lesser of--
(A) 2 percent of the funds appropriated
pursuant to this section for the fiscal year;
or
(B) $10,000,000.
----------
Public Law 93-523, 93d Congress
S. 433, December 16, 1974
AN ACT To amend the Public Health Service Act to assure that the public
is provided with safe drinking water, and for other purposes
Be it enacted by the Senate and House of Representatives of
the United States in Congress assembled,
short title
Section 1. This Act may be cited as the ``Safe Drinking
Water Act of 1974''.
* * * * * * *
----------
UNITED STATES CODE, TITLE 21, SECTION 301, ET SEQ.
[Changes to section 410 of the Federal, Food, Drug and Cosmetic Act]
* * * * * * *
bottled drinking water standards
Sec. 410. [Whenever] (a) Except as provided in subsection
(b), whenever the Administrator of the Environmental Protection
Agency prescribes interim or revised national primary drinking
water regulations under section 1412 of the Public Health
Service Act, the Secretary shall consult with the Administrator
and within 180 days after the promulgation of such drinking
water regulations either promulgate amendments to regulations
under this chapter applicable to bottled drinking water or
publish in the Federal Register his reasons for not making
amendments.
(b)(1) After the Administrator of the Environmental
Protection Agency publishes a proposed maximum contaminant
level, but not later than 180 days after the Administrator of
the Environmental Protection Agency publishes a final maximum
contaminant level, for a contaminant under section 1412 of the
Public Health Service Act (42 U.S.C. 300g--1), the Secretary,
after public notice and comment, shall issue a regulation that
establishes a quality level for the contaminant in bottled
water or make a finding that a regulation is not necessary to
protect the public health because the contaminant is contained
in water in the public water systems (as defined under section
1401(4) of such Act (42 U.S.C. 300f(4)) and not in water used
for bottled drinking water. In the case of any contaminant for
which a national primary drinking water regulation was
promulgated before the date of enactment of the Safe Drinking
Water Act Amendments of 1995, the Secretary shall issue the
regulation or make the finding required by this paragraph not
later than 1 year after than date.
(2) The regulation shall include any monitoring
requirements that the Secretary determines to be appropriate
for bottled water.
(3) The regulation--
(A) shall require that the quality level for the
contaminant in bottled water be as stringent as the
maximum contaminant level for the contaminant published
by the Administrator of the Environmental Protection
Agency; and
(B) may require that the quality level be more
stringent than the maximum contaminant level if
necessary to provide ample public health protection
under this Act.
(4)(A) If the Secretary fails to establish a regulation
within the 180-day period described in paragraph (1), the
regulation with respect to the final maximum contaminant level
published by the Administrator of the Environmental Protection
Agency (as described in such paragraph) shall be considered, as
of the date on which the Secretary is required to establish a
regulation under paragraph (1), as the final regulation for the
establishment of the quality level for a contaminant required
under paragraph (1) for the purpose of establishing or amending
a bottled water quality level standard with respect to the
contaminant.
(B) Not later than 30 days after the end of the 180-day
period described in paragraph (1), the Secretary shall, with
respect to a maximum contaminant level that is considered as a
quality level under subparagraph (A), publish a notice in the
Federal Register that sets forth the quality level and
appropriate monitoring requirements required under paragraphs
(1) and (2) and that provides that the quality level standard
and requirements shall take effect on the date on which the
final regulation of the maximum contaminant level takes effect.
----------
Public Law 102-486, 102d Congress
H.R. 776, October 24, 1992
AN ACT To provide for improved energy efficiency.
* * * * * * *
[sec. 3013. geothermal heat pumps.
The Secretary shall--
(1) encourage States, municipalities, counties, and
townships to consider allowing the installation of
geothermal heat pumps, and, where applicable, and
consistent with public health and safety, to permit
public and private recipients to utilize the flow of
water form, and back into, public and private water
mains for the purpose of providing sufficient water
supply for the operation of residential and commercial
geothermal heat pumps; and
(2) not discourage any local authority which allows
the use of geothermal heat pumps from--
(A) inspecting, at any reasonable time,
geothermal heat pump connections to the water
system to ensure the exclusive use of the
public or private water supply to the
geothermal heat pump system; and
(B) requiring that geothermal heat pumps
systems be designed and installed in a manner
that eliminates any risk of contamination to
the public water supply.]