[Federal Register Volume 63, Number 81 (Tuesday, April 28, 1998)]
[Rules and Regulations]
[Pages 23362-23368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11260]



[[Page 23361]]

_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 141 and 142



Revisions to State Primacy Requirements To Implement Safe Drinking 
Water Act Amendments; Final Rule

  Federal Register / Vol. 63, No. 81 / Tuesday, April 28, 1998 / Rules 
and Regulations  

[[Page 23362]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 141 and 142

[FRL-6003-5]
RIN-2040-AD00


Revisions to State Primacy Requirements To Implement Safe 
Drinking Water Act Amendments

AGENCY: Environmental Protection Agency.

ACTION: Final rule; interpretation.

-----------------------------------------------------------------------

SUMMARY: Today's action amends the regulations that set forth the 
requirements for States to obtain and retain primary enforcement 
authority (primacy) for the Public Water System Supervision (PWSS) 
program under section 1413 of the Safe Drinking Water Act (SDWA) as 
amended by the 1996 Amendments. This rule adds the new administrative 
penalty authority requirement that States must meet in order to obtain 
or retain primacy, plus changes the timing for a State to adopt new or 
revised drinking water regulations. The rule also changes a State's 
primacy status while awaiting a final determination on its primacy 
application. Additionally, the rule's language provides examples of 
circumstances that require an emergency plan for the provision of safe 
drinking water. Lastly, this action expands the definition of a public 
water system (PWS). Since all of the above changes are merely a 
codification of the amended SDWA, the Agency is publishing this 
document as a final rule.

DATES: This action is effective April 28, 1998 except for Sec. 142.11 
which contains information collection requirements that have not yet 
been approved by Office of Management and Budget (OMB). EPA will 
publish a document in the Federal Register announcing the effective 
date of Sec. 142.11

FOR FURTHER INFORMATION CONTACT: The Safe Drinking Water Hotline, toll 
free (800) 426-4791, or Jennifer Melch; Regulatory Implementation 
Branch; Office of Ground Water and Drinking Water; EPA (4606), 401 M 
Street, S.W., Washington, DC 20460; telephone (202) 260-7035.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action are those which have 
primary enforcement authority for the PWSS program and those which meet 
the criteria of the PWS definition. Regulated categories and entities 
include:

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             entities          
------------------------------------------------------------------------
Industry..................................  Public Water Systems.       
State Government..........................  Agencies with primary       
                                             enforcement authority for  
                                             the PWSS program.          
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your entity is regulated by this action, you should carefully examine 
the applicability criteria in Secs. 141.2, 142.2, and 142.10 and the 
applicability criteria in Secs. 142.3 and 142.10 of title 40 of the 
Code of Federal Regulations. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Table of Contents

A. Summary and Explanation of Today's Action
    1. Administrative Penalty Authority
    2. Interim Primacy Authority
    3. Time Increase for Adopting Federal Regulations
    4. Examples of Emergency Circumstances That Require a Plan for 
Safe Drinking Water
    5. Revision of Public Water System Definition
B. Impact of These Revisions
    1. Executive Order 12866
    2. Regulatory Flexibility Act
    3. Paperwork Reduction Act
    4. Unfunded Mandates Reform Act
    5. Executive Order 13045--Protection of Children From 
Environmental Health Risks and Safety Risks
    6. Submission to Congress and the General Accounting Office
    7. National Technology Transfer and Advancement Act
    8. Administrative Procedure Act

A. Summary and Explanation of Today's Action

    40 CFR part 142, subpart B, sets out requirements for States to 
obtain and/or retain primacy for the Public Water System Supervision 
(PWSS) program as authorized by section 1413 of the Safe Drinking Water 
Act (SDWA). The Safe Drinking Water Act Amendments of 1996 created an 
additional requirement for States to obtain and/or retain primacy for 
the PWSS program. Section 1413(a)(6) requires States to have 
administrative penalty authority. Today's rule adds a provision to 
Sec. 142.10 incorporating this new requirement. Because questions have 
arisen on the meaning of section 1413(a)(6), today's preamble sets 
forth EPA's interpretation of this section.
    The addition of section (e) in Sec. 142.12 of this rule is also due 
to the 1996 Amendments. Section 142.12(e) explains that when a State 
with primacy for all existing national primary drinking water 
regulations submits a primacy revision application, the State is 
considered to have primary enforcement authority for the new or revised 
regulation while EPA makes a final determination on the application.
    Additionally, the Agency is making revisions to Sec. 142.10(e) to 
reflect the 1996 Amendments by adding examples of emergency situations 
and to Sec. 142.12(b) by changing the time limitation for adopting new 
or revised Federal regulations. Finally, the Agency is revising the 
definition of a public water system in both Parts 141 and 142 to codify 
changes to the statutory definition. The new definition includes 
certain systems that provide water for human consumption through 
constructed conveyances other than pipes.

1. Administrative Penalty Authority

    Section 1413 of the SDWA sets out the conditions under which States 
may apply for, and retain, primary enforcement responsibility with 
respect to PWSs. As amended in 1996, section 1413 now requires States 
to have administrative penalty authority for all violations of their 
approved primacy program, unless prohibited by the State constitution. 
This encompasses applicable requirements in parts 141 and 142 
including, but not limited to, NPDWRs, variances and exemptions, and 
public notification. This includes administrative penalty authority for 
violations of any State requirements that are more stringent than the 
analogous Federal requirements on which they are based. However, States 
are not required to have administrative penalty authority for 
violations of State requirements that are broader in scope than the 
federal program, or unrelated to the approved program.
    States must have the authority to impose administrative penalties 
on PWSs serving a population greater than 10,000 individuals in an 
amount that is not less than $1,000 per day per violation. For PWSs 
serving a population of 10,000 individuals or less, States must have 
the authority to impose an administrative penalty that is ``adequate to 
ensure compliance.'' However, States may establish a maximum limitation 
on the total

[[Page 23363]]

amount of administrative penalties that may be imposed on a PWS per 
violation.
Statutory Language
    Section 1413 of the SDWA provides that a State will have primary 
enforcement responsibility for PWSs during any period for which the 
Administrator determines that the State meets the requirements of 
section 1413(a) as implemented through EPA regulations. One of the new 
conditions added for primacy is section 1413(a)(6), which requires that 
a primacy State:
    (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.
Interpretation of ``In a Maximum Amount * * * That is Not Less Than 
$1,000 Per Day Per Violation''
    The first issue for clarification is the meaning of requiring 
States to have administrative penalty authority ``in a maximum amount * 
* * that is not less than $1,000 per day per violation.'' Relying on 
both the legislative history of the 1996 SDWA Amendments and the 
principles of statutory construction, EPA has interpreted the provision 
as discussed in the following paragraphs.
    The report on Senate Bill (SB)1316 says, in explaining this 
provision, that States are to adopt administrative penalties of at 
least $1,000 per day per violation for large systems. Since the 
language in the House Bill and in the final version of the SDWA 
amendments is identical to that in SB1316, and there is no additional 
explanation of this language, the report on SB1316 is a helpful 
indicator of Congressional intent.
    Therefore, it is EPA's position that, in order to have primacy, 
States must have the authority to impose a maximum penalty per day per 
violation for systems serving a population greater than 10,000 
individuals and this maximum must be $1,000 or greater. It is critical 
that States have the authority to impose this penalty. However, States 
are not required to assess this per day per violation penalty for 
systems serving a population of more than 10,000 individuals. In 
particular cases, States may assess lesser penalties than the maximum 
penalty authorized by the State, so long as they retain the authority 
to impose a penalty of at least $1,000 per day per violation.
    A State's penalty authority must be ``per day per violation.'' If a 
State has authority for administrative penalties up to a specific 
dollar amount (in total, or as per day, or per violation), but the 
authority is not expressed as an amount ``per day per violation,'' then 
the authority is not sufficient to comply with this requirement.
    Although not required to do so, a State may establish an 
administrative penalty cap. If a State establishes a cap, the cap 
cannot be on the total administrative penalty which may be imposed on 
the system but may only be on the total which may be imposed on the 
system ``per violation.'' For example, a State could obtain authority 
for administrative penalties of $1,000 per day per violation, not to 
exceed $25,000 for each violation. If a PWS in that State had 3 maximum 
contaminant level violations, each of which lasted a month, the system 
could be assessed an administrative penalty of $75,000. (This would be 
calculated as follows: The PWS had 3 violations at $1,000 per day  x  
30 days for each violation; thus, the system could be assessed $90,000, 
if there was no cap. However, because the State has established a cap 
of $25,000 for each violation, the PWS could only be assessed the 
maximum for each violation--$25,000  x  3 = $75,000).
Interpretation of ``Adequate To Ensure Compliance''
    The next area subject to interpretation is what penalty is 
``adequate to ensure compliance'' for systems serving a population of 
10,000 or fewer individuals. This provision is designed to give the 
States flexibility in dealing with the smaller systems. The provision 
recognizes that some of the smaller systems face special challenges in 
complying with the requirements of the SDWA and its regulations and may 
not have the financial capability to pay a large penalty. Moreover, 
with some of the small and very small systems, a modest penalty can 
serve as a great deterrent. In addition, assessing modest penalties 
often requires less burdensome hearing procedures and thus can be more 
efficient. At the same time, however, it must be remembered that a good 
portion of the small systems are, in fact, profit-making businesses and 
therefore should not be permitted to gain an economic advantage through 
their noncompliance with the law. Given these factors, as well as many 
others, States must determine, for systems serving a population of 
10,000 individuals or less, a level or levels of administrative 
penalties which will, in their opinion, ensure compliance. The level 
can be the same as that for the larger systems.
Determination of State Administrative Penalty Authority
    As a part of the primacy application review process, EPA will 
review the State laws and regulations to determine whether the State 
has the requisite administrative penalty authority or whether its 
constitution prohibits the adoption of such authority. States must 
submit copies of their laws and regulations; States that believe that 
their constitution prohibits administrative penalty authority must 
submit a copy of their constitution and an interpretation from the 
State Attorney General. EPA's review will likely also include a request 
for a State Attorney General to provide an interpretation of the 
State's authority. The Attorney General's statement will be needed 
particularly in cases where the State laws or regulations use different 
language than the SDWA. EPA will also require States to submit a 
rationale for their determination that the chosen level of 
administrative penalty authority for PWSs serving a population of 
10,000 individuals or less is appropriate. Additionally, EPA may 
request an explanation from the States on how they plan to use their 
penalty authority (that is, a penalty policy). In today's rule, EPA is 
amending 40 CFR 142.11 to clarify the documentation States must provide 
for EPA's review of State administrative penalty authority.
Process for Review and Approval of State Programs
    The process EPA will use to review and approve State programs will 
vary based on the circumstances. In cases where the State has adequate 
administrative penalty authority that is already part of an approved 
primacy program, no formal process under Part 142 is required to 
approve the program. In situations where either the State has adequate 
administrative penalty authority but it is not part of an approved 
primacy program, or where the State administrative penalty authority is 
not adequate to meet the new requirement, the State must follow the 
process for primacy program revisions in 40 CFR 142.12.
    If or when it becomes clear that a State is not going to obtain the 
required authority, or if the State is not acting in good faith to 
obtain the required authority, EPA will seek to begin the primacy 
withdrawal process under 40

[[Page 23364]]

CFR 142.17. There are serious consequences if a State loses primacy, 
including the loss of Drinking Water State Revolving Fund (DWSRF) 
monies.

2. Interim Primacy Authority

    EPA has added new Sec. 142.12(e) to incorporate the new process 
identified in the 1996 Amendments for granting primary enforcement 
authority to States while their applications to modify their primacy 
programs are under review. Previously, States that submitted these 
applications did not receive primacy for the changes in their State 
programs until EPA approved the applications. The new process, which is 
available only to States that have primacy for every existing national 
primary drinking water regulation in effect when the new regulation is 
promulgated, grants interim primary enforcement authority for a new or 
revised regulation during the period in which EPA is making a 
determination with regard to primacy for that new or revised 
regulation. This interim enforcement authority begins on the date of 
the primacy application submission or the effective date of the new or 
revised State regulation, whichever is later, and ends when EPA makes a 
final determination. Interim primacy has no effect on EPA's final 
determination and States should not assume that their applications will 
be approved based on this interim primacy.

3. Time Increase for Adopting Federal Regulations

    EPA has amended the language in Sec. 142.12(b) to increase the time 
for a State to adopt new or revised Federal regulations from 18 months 
to 2 years to reflect section 1413(a)(1) as revised by the 1996 
Amendments.

4. Examples of Emergency Circumstances That Require a Plan for Safe 
Drinking Water

    The Agency has added examples of natural disasters to 
Sec. 142.10(e) to maintain consistency and uniformity with the 
statutory counterpart section 1413(a)(5), which was revised in the 1996 
Amendments.

5. Revision of Public Water System Definition

    Public water systems, unless they meet the four criteria enumerated 
in section 1411 or qualify for a variance or exemption under sections 
1415 or 1416, must comply with the national primary drinking water 
regulations promulgated in 40 CFR Part 141. Before the 1996 Amendments, 
the SDWA defined a PWS as a system that provided piped water for human 
consumption to the public and had at least fifteen service connections 
or regularly served at least twenty-five individuals. The 1996 
Amendments expanded the means of delivering water to include not only 
systems which provide water for human consumption through pipes, but 
also systems which provide water for human consumption through ``other 
constructed conveyances.'' In today's rule, EPA codifies this change by 
amending the definition of ``public water system'' in Secs. 141.2 and 
142.2 as well as by adding or clarifying several other definitions.
    The 1996 Amendments did not change the connections or users served 
requirement. However, water suppliers that became PWSs only as a result 
of the changed definition will not be considered PWSs, subject to SDWA 
requirements, until after August 5, 1998.
``Service Connection'' Exclusions
    For systems which only could become PWSs as a result of the 
broadened definition, the Amendments allow certain connections to be 
excluded, for purposes of the definition, if the water supplied by that 
connection meets any of the three criteria enumerated in section 
1401(4)(B)(i).
    First, a connection is excluded where the water is used exclusively 
for purposes other than ``residential uses.'' Residential uses consist 
of drinking, bathing, cooking, or similar uses. Next, a connection may 
be excluded if the State exercising primary enforcement responsibility 
or the Administrator determines that ``alternative water'' to achieve 
the equivalent level of public health protection afforded by the 
applicable national primary drinking water regulations is provided for 
residential or similar uses for drinking and cooking. The third 
exclusion may apply where the Administrator or the State exercising 
primary enforcement responsibility determines that the water provided 
for residential or similar uses for drinking, cooking, and bathing 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.
``Special Irrigation District'' Exemption
    A piped water system may be considered a ``special irrigation 
district'' if it was in existence prior to May 18, 1994, and provides 
primarily agricultural service with only incidental residential or 
similar use. Special irrigation districts are not considered to be PWSs 
if the system or the residential or similar users of the system comply 
with the requirements of the alternative water exclusion in section 
1401(4)(B)(i)(II) or the treatment exclusion in section 
1401(4)(B)(i)(III).
Implementation of the New PWS Definition
    Systems newly subject to SDWA regulations under the amended 
definition of a PWS will not be regulated until August 6, 1998, as 
provided in section 1401(4)(C) of the SDWA. States with primary 
enforcement authority must revise their programs within two years from 
the effective date of this regulation to include waters suppliers that 
became PWSs only as a result of the new PWS definition. States must 
follow the process for primacy program revisions in 40 CFR 142.12. To 
assist States in revising their programs, EPA plans to issue guidance 
providing a more detailed interpretation of the new definition and the 
statutory exclusions.

B. Impact of These Revisions

1. Executive Order 12866

    Under Executive Order 12866, [58 FR 51,735 (October 4, 1993)] the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (a) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (b) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (c) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

2. Regulatory Flexibility Act

    The Agency has determined that the rule being issued today is not 
subject to the Regulatory Flexibility Act (RFA), which generally 
requires an Agency to conduct a regulatory flexibility analysis of any 
significant impact the rule will

[[Page 23365]]

have on a substantial number of small entities. By its terms, the RFA 
applies only to rules subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act (APA) or any other 
statute. Today's rule is not subject to notice and comment requirements 
under the APA or any other statute because it falls into the 
interpretative statement exception under APA section 553(b) and because 
the Agency has found ``good cause'' to publish without prior notice and 
comment. See section B.8.

3. Paperwork Reduction Act

    The information collection requirements in this rule will be 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1836.01) and a copy may be obtained from Sandy Farmer, OPPE 
Regulatory Information Division; U.S. Environmental Protection Agency 
(2137); 401 M Street, S.W.; Washington, DC 20460 or by calling (202) 
260-2740. The information requirements are not effective until OMB 
approves them.
    This information collection is necessary because the SDWA 
Amendments of 1996 added a new element to the requirements for States 
to obtain and/or retain primacy for the PWSS program. In order for EPA 
to determine whether States meet the new administrative penalty 
authority requirement, States must submit a copy of their legislation 
authorizing the penalty authority and a description of their authority 
for administrative penalties that will ensure adequate compliance of 
systems serving a population of 10,000 individuals or less. In 
accordance with the procedures outlined in Sec. 142.11(7)(i) and 
Sec. 142.12 (c)(iii), the State Attorney General must certifiy that the 
laws and regulations were duly adopted and are enforceable. 
Alternatively, if a State constitution prohibits assessing 
administrative penalties, the State must submit a copy of the relevant 
provision of the constitution as well as an Attorney General's 
statement confirming that interpretation. Furthermore, as provided in 
Sec. 142.11(a)(7)(ii), as amended by this rule, and Sec. 142.12(c), EPA 
may additionally require supplemental statements from the State 
Attorney General, (such as an interpretation of the statutory 
language), when the above supplied information is deemed insufficient 
for a decision.
    Collecting and reporting this information will require a total 
respondent cost burden estimated at $37,954.63 and 696.20 hours. This 
estimate includes the time for gathering, analyzing, writing, and 
reporting information. There will be no capital, start-up, or operation 
and maintenance costs. This data collection does not involve periodic 
reporting or recordkeeping. Rather, this will be a one time effort of 
approximately 12 hours and 26 minutes by each of the 56 States who wish 
to adopt the administrative penalty authority necessary in order to 
obtain or retain primacy.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing way to comply 
with any previously applicable instructions and requirements; train 
personnel to be able to respond to a collection of information; search 
data sources; complete and review the collection of information; and 
transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
    Send comments on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden, including through the use of 
automated collection techniques to the Director, OPPE Regulatory 
Information Division; U.S. Environmental Protection Agency (2137); 401 
M. Street; S.W.; Washington, DC 20460; and to the Office of Information 
and Regulatory Affairs, Office of Management and Budget, 725 17th 
Street, N.W.; Washington, DC 20503; marked ``Attention: Desk Officer 
for EPA.'' Review will be in accordance with the procedures in 5 CFR 
1320.10. Comments are requested by June 29, 1998. Include the ICR 
number in any correspondence.

4. Unfunded Mandates Reform Act and Executive Order 12875

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The UMRA generally excludes from the 
definition of ``Federal intergovernmental mandate'' duties that arise 
from participation in a voluntary federal program. The requirements 
under section 1413(a) of the SDWA are only mandatory if a State chooses 
to have primary enforcement responsibility for PWSs. Additionally, 
today's rule implements requirements specifically set forth by the 
Congress in sections 1401 and 1413 of the SDWA without the exercise of 
any discretion by EPA.
    In any event, even if this rule were not excluded from the 
definition of ``Federal intergovernmental mandate,'' EPA has determined 
that this rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal

[[Page 23366]]

governments, in the aggregate, or the private sector in any one year.
    Thus, today's rule is not subject to the requirements of sections 
202 and 205 of the UMRA.
    Additionally, EPA has determined that this rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments, including tribal governments. Rather, this rule 
primarily affects State governments. Therefore, this action does not 
require a small government agency plan under UMRA section 203.
    Because this rule imposes no intergovernmental mandate, it also is 
not subject to Executive Order 12875 (Enhancing the Intergovernmental 
Partnership).

5. Executive Order 13045--Protection of Children From Environmental 
Health Risks and Safety Risks

    Today's action is not subject to Executive Order 13045 [62 FR 19885 
(April 23, 1997)] which requires agencies to identify and assess the 
environmental health and safety risks of their rules on children. 
Pursuant to the definitions in section 2-202, Executive Order 13045 
only applies to rules that are economically significant as defined 
under Executive Order 12866 and concern an environmental health or 
safety risk that may disproportionately affect children. This rule is 
not economically significant and does not concern a risk 
disproportionately affecting children.

6. Submission to Congress and the General Accounting Office

    The Congressional Review Act, (5 U.S.C. 801 et seq.) as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), generally provides that before a rule may take effect, the 
agency promulgating the rule must submit a rule report, which includes 
a copy of the rule, to each House of the Congress and to the 
Comptroller General of the United States. However, section 808 provides 
that any rule for which the issuing agency for good cause finds (and 
incorporates the finding and a brief statement of reasons therefore in 
the rule) that notice and public procedure thereon are impracticable, 
unnecessary or contrary to the public interest, shall take effect at 
such time as the agency promulgating the rule determines. 5 U.S.C. 
808(2). As discussed in Section B.8., EPA has made such a good cause 
finding for this rule, including the reasons therefore, and established 
an effective date of April 28, 1998. EPA will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States Office prior to publication of the rule in the Federal 
Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

7. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is required to use voluntary consensus 
standards in its regulatory and procurement activities unless to do so 
would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., material 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standard 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires the Agency to provide 
Congress, through the Office of Management and Budget, an explanation 
of the reasons for not using such standards. Because this rule does not 
involve or require the use of any technical standards, EPA does not 
believe that this Act is applicable to this rule. Moreover, EPA is 
unaware of any voluntary consensus standards relevant to this 
rulemaking. Therefore, even if the Act were applicable to this kind of 
rulemaking, EPA does not believe that there are any ``available or 
potentially applicable'' voluntary consensus standards.

8. Administrative Procedure Act

    Because this rule merely codifies and interprets a statute, the 
amended SDWA, it is an ``interpretative rule.'' As a result, it is 
exempt from the notice and comment requirements for rulemakings under 
section 553 of the APA (See section 553(b)(3)(A)). In addition, because 
this rule merely codifies statutory requirements and makes clarifying 
changes to the rules necessary to implement the amended statute, notice 
and comment is ``unnecessary'' and thus the Agency has ``good cause'' 
to publish this rule without prior notice and comment (APA section 
553(b)(3)(B)). For the same reasons, EPA is making the provisions of 
this rule effective upon promulgation, as authorized under the APA (See 
sections 553(d)(2) and (3)). However, systems newly subject to SDWA 
regulation under the amended definition will not be regulated until 
August 6, 1998 as provided in the 1996 Amendments.

List of Subjects in 40 CFR Parts 141 and 142

    Environmental protection, Administrative practices and procedures, 
Intergovernmental relations, Reporting and recordkeeping requirements, 
Water supply, Indians.

    Dated: April 17, 1998.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, the Environmental 
Protection Agency amends 40 CFR Parts 141 and 142 as follows:

PART 141--NATIONAL PRIMARY DRINKING WATER REGULATIONS

    1. The authority citation for part 141 continues to read as 
follows:

    Authority: 42 U.S.C. 300f, 300g, 300g-1, 300g-2, 300g-3, 300g-4, 
300g-5, 300g-6, 300j-4, and 300j-9.

    2. In Sec. 141.2 by revising the definitions of non-community water 
system and public water system and adding the following definitions in 
alphabetical order.


Sec. 141.2  Definitions.

* * * * *
    Non-community water system means a public water system that is not 
a community water system. A non-community water system is either a 
``transient non-community water system (TWS)'' or a ``non-transient 
non-community water system (NTNCWS).''
* * * * *
    Public water system or PWS means a system for the provision to the 
public of water for human consumption through pipes or, after August 5, 
1998, other constructed conveyances, if such system has at least 
fifteen service connections or regularly serves an average of at least 
twenty-five individuals daily at least 60 days out of the year. Such 
term includes: any collection, treatment, storage, and distribution 
facilities under control of the operator of such system and used 
primarily in connection with such system; and any collection or 
pretreatment storage facilities not under such control which are used 
primarily in connection with such system. Such term does not include 
any ``special irrigation district.'' A public water system is either a 
``community water system'' or a ``noncommunity water system.''
* * * * *
    Service connection, as used in the definition of public water 
system, does not include a connection to a system that delivers water 
by a constructed conveyance other than a pipe if:

[[Page 23367]]

    (1) The water is used exclusively for purposes other than 
residential uses (consisting of drinking, bathing, and cooking, or 
other similar uses);
    (2) The State 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
    (3) The State determines that the water provided for residential or 
similar uses for drinking, cooking, and bathing 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.
* * * * *
    Special irrigation district means an irrigation district in 
existence prior to May 18, 1994 that provides primarily agricultural 
service through a piped water system with only incidental residential 
or similar use where the system or the residential or similar users of 
the system comply with the exclusion provisions in section 
1401(4)(B)(i)(II) or (III).
* * * * *

PART 142--NATIONAL PRIMARY DRINKING WATER REGULATIONS 
IMPLEMENTATION

    1. The authority citation for part 142 continues to read as 
follows:

    Authority: 42 U.S.C. 300f, 300g, 300g-1, 300g-2, 300g-3, 300g-4, 
300g-5, 300g-6, 300j-4, and 300j-9.

    2. In Sec. 142.2 by revising the definition of public water system 
and adding the following definitions in alphabetical order.


Sec. 142.2  Definitions.

* * * * *
    Public water system or PWS means a system for the provision to the 
public of water for human consumption through pipes or, after August 5, 
1998, other constructed conveyances, if such system has at least 
fifteen service connections or regularly serves an average of at least 
twenty-five individuals daily at least 60 days out of the year. Such 
term includes:
    Any collection, treatment, storage, and distribution facilities 
under control of the operator of such system and used primarily in 
connection with such system; and any collection or pretreatment storage 
facilities not under such control which are used primarily in 
connection with such system. Such term does not include any ``special 
irrigation district.'' A public water system is either a ``community 
water system'' or a ``noncommunity water system'' as defined in 
Sec. 141.2.
* * * * *
    Service connection, as used in the definition of public water 
system, does not include a connection to a system that delivers water 
by a constructed conveyance other than a pipe if:
    (1) The water is used exclusively for purposes other than 
residential uses (consisting of drinking, bathing, and cooking, or 
other similar uses);
    (2) The Administrator or the 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
    (3) The Administrator or the State exercising primary enforcement 
responsibility for public water systems, determines that the water 
provided for residential or similar uses for drinking, cooking, and 
bathing 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.
    Special irrigation district means an irrigation district in 
existence prior to May 18, 1994 that provides primarily agricultural 
service through a piped water system with only incidental residential 
or similar use where the system or the residential or similar users of 
the system comply with the exclusion provisions in section 
1401(4)(B)(i)(II) or (III).
* * * * *
    3. In Sec. 142.10 by revising paragraph (e), redesignating 
paragraph (f) as paragraph (g) and adding paragraph (f) to read as 
follows:


Sec. 142.10  Requirements for a determination of primary enforcement 
responsibility.

* * * * *
    (e) Has adopted and can implement an adequate plan for the 
provision of safe drinking water under emergency circumstances 
including, but not limited to, earthquakes, floods, hurricanes, and 
other natural disasters.
    (f)(1) Has adopted authority for assessing administrative penalties 
unless the constitution of the State prohibits the adoption of such 
authority. For public water systems serving a population of more than 
10,000 individuals, States must have the authority to impose a penalty 
of at least $1,000 per day per violation. For public water systems 
serving a population of 10,000 or fewer individuals, States must have 
penalties that are adequate to ensure compliance with the State 
regulations as determined by the State.
    (2) As long as criteria in paragraph (f)(1) of this section are 
met, States may establish a maximum administrative penalty per 
violation that may be assessed on a public water system.
* * * * *
    4. In Sec. 142.11 by redesignating paragraph (a)(6) as paragraph 
(a)(7) and adding new paragraph (a)(6) to read as follows:


Sec. 142.11  Initial determination of primary enforcement 
responsibility.

    (a) * * *
    (6)(i) A copy of the State statutory and regulatory provisions 
authorizing the executive branch of the State government to impose an 
administrative penalty on all public water systems, and a brief 
description of the State's authority for administrative penalties that 
will ensure adequate compliance of systems serving a population of 
10,000 or fewer individuals.
    (ii) In instances where the State constitution prohibits the 
executive branch of the State government from assessing any penalty, 
the State shall submit a copy of the applicable part of its 
constitution and a statement from its Attorney General confirming this 
interpretation.
* * * * *
    5. Amend Sec. 142.12, by revising paragraph (b)(1) and by adding 
paragraph (e) to read as follows:


Sec. 142.12  Revision of State programs.

* * * * *
    (b) * * *
    (1) Complete and final State requests for approval of program 
revisions to adopt new or revised EPA regulations must be submitted to 
the Administrator not later than 2 years after promulgation of the new 
or revised EPA regulations, unless the State requests an extension and 
the Administrator has approved the request pursuant to paragraph (b)(2) 
of this section. If the State expects to submit a final State request 
for approval of a program revision to EPA more than 2 years after 
promulgation of the new or revised EPA regulations, the State shall 
request an extension of the deadline before the expiration of the 2-
year period.
* * * * *
    (e) Interim primary enforcement authority. A State with an approved 
primacy program for each existing national primary drinking water 
regulation shall be considered to have interim primary enforcement 
authority

[[Page 23368]]

with respect to each new or revised national drinking water regulation 
that it adopts beginning when the new or revised State regulation 
becomes effective or when the complete primacy revision application is 
submitted to the Administrator, whichever is later, and shall end when 
the Administrator approves or disapproves the State's revised primacy 
program.

[FR Doc. 98-11260 Filed 4-27-98; 8:45 am]
BILLING CODE 6560-50-P