[Federal Register Volume 65, Number 140 (Thursday, July 20, 2000)]
[Notices]
[Pages 45057-45063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18434]


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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-6838-9]


Proposed Additions to the Final Guidelines for the Certification 
and Recertification of the Operators of Community and Nontransient 
Noncommunity Public Water Systems; Proposed Allocation Methodology for 
Funding to States for the Operator Certification Expense Reimbursement 
Grants Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; solicitation of comments.

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

SUMMARY: In this Notice, the Environmental Protection Agency (EPA) is 
seeking comment on proposed additions to the Final Guidelines for the 
Certification and Recertification of the Operators of Community and 
Nontransient Noncommunity Public Water Systems, which were published in 
the Federal Register on February 5, 1999 (64 FR 5916). Specifically, 
EPA is seeking comment on the approach and schedule for review of State 
operator certification programs for the purpose of making Drinking 
Water State Revolving Fund (DWSRF) withholding determinations, and the 
intent of the term ``validated exam''. EPA is also seeking comment on 
the proposed allocation methodology and program for funding that will 
be used to award grants to States for the Operator Certification 
Expense Reimbursement Grants Program.

DATES: Submit written comments on or before September 5, 2000.

ADDRESSES: Send written comments on this Federal Register notice to the 
Operator Certification Comment Clerk, Water Docket MC-4101 (Docket #W-
98-07), United States Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Washington, DC, 20460. Please submit an 
original and three copies of your comments and enclosures (including 
references). Those who comment and want EPA to acknowledge receipt of 
their comments must enclose a self-addressed, stamped envelope. No 
facsimiles (faxes) will be accepted. Comments may be hand-delivered to 
EPA's Water Docket, Room EB57, 401 M Street SW, Washington, DC 20460. 
Comments may also be submitted electronically to [email protected]. 
Electronic comments must be submitted as an ASCII file avoiding the use 
of special characters and forms of encryption. Electronic comments must 
be identified by Docket #W-98-07. Comments and data will also be 
accepted on disks as a WordPerfect 8 file. Electronic comments on this 
notice may be filed online at many Federal Depository Libraries.
    The record for these proposals has been established under Docket 
#W-98-07, and includes supporting documentation as well as printed 
paper versions of electronic comments. The record is available for 
review at EPA's Water Docket, Room EB57, 401 M Street SW, Washington DC 
20460. For access to the Docket materials, call (202) 260-3027 between 
9:00 a.m. and 3:30 p.m. Eastern Time for an appointment and reference 
Docket #W-98-07.

FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact Jenny 
Jacobs, Office of Ground Water and Drinking Water (4606), U.S. EPA, 
1200 Pennsylvania Avenue NW, Washington, DC, 20460. The telephone 
number is (202) 260-2939 and the e-mail address is 
[email protected]. For copies of this document, contact the Safe 
Drinking Water Hotline, toll free at (800) 426-4791. Copies can also be 
obtained from EPA's website at http://www.epa.gov/ogwdw/opcert/opcert.htm. Copies of EPA's Final Guidelines for the Certification and 
Recertification of the Operators of Community and Nontransient 
Noncommunity Public Water Systems may be obtained by contacting the 
Safe Drinking Water Hotline or EPA's website at http://www.epa.gov/ogwdw/opcert/opguide.html.

SUPPLEMENTARY INFORMATION:

I. Proposed Additions to the Final Guidelines for the Certification 
and Recertification of the Operators of Community and Nontransient 
Noncommunity Public Water Systems
    A. Background
    B. General Review and Withholding Process Information
    C. Review Process and DWSRF Withholding Determinations for 
Substantially Equivalent State Operator Certification Programs
    D. Review Process and DWSRF Withholding Determinations for 
Revised State Operator Certification Programs
    E. Validated Exam Issue
II. Proposed Allocation Methodology for the Operator Certification 
Expense Reimbursement Grants Program
    A. Background
    B. Administration of the Grants Program
    C. Program Funding
    D. Allocation Methodology

I. Proposed Additions to the Final Guidelines for the Certification 
and Recertification of the Operators of Community and Nontransient 
Noncommunity Public Water Systems

A. Background

    The operator certification guidelines were developed to meet the 
requirements of section 1419(a) of the Safe Drinking Water Act (SDWA), 
as amended in 1996. Section 1419(a) directs the United States 
Environmental Protection Agency (EPA) to develop guidelines specifying 
minimum standards for certification and recertification of operators of 
community and nontransient noncommunity public water systems and to 
publish final guidelines by February 6, 1999. The final guidelines were 
published in the Federal Register on February 5, 1999 (64 FR 5916)--see 
Docket #W-98-07, Operator Cert., II-A.1. Pursuant to section 1419(b) of 
the SDWA, beginning two years after the date on which EPA publishes 
guidelines for the certification (and recertification) of operators of 
community and nontransient noncommunity public water systems (or 
February 5, 2001), EPA shall withhold 20 percent of the funds a State 
is otherwise entitled to receive under SDWA section 1452 unless a State 
has adopted and is implementing a program that meets the requirements 
of EPA's operator certification guidelines. Section 1452 establishes a 
Drinking Water State Revolving Fund (DWSRF) program to assist public 
water systems to finance the costs of infrastructure needed to achieve 
or maintain compliance with SDWA requirements and to further the public 
health objectives of the Act. Section 1452 authorizes EPA to award 
capitalization grants to States, which in turn provide low cost loans 
to eligible systems and other types of assistance. Under section 1452, 
States can also set aside a portion of their capitalization grant to 
use for State program management purposes relating to implementation of 
the public water system supervision, source water protection, operator 
certification and capacity development programs. States must meet the 
requirements contained in EPA's operator certification guidelines to 
avoid DWSRF capitalization grant withholding. There are no other 
sanctions for States with operator certification programs that do not 
meet the requirements of the

[[Page 45058]]

guidelines. All funds withheld by EPA shall be reallotted based on the 
formula originally used to allot those funds. These withheld funds will 
be realloted to States who are implementing a program that meets EPA's 
guidelines. A State that has not met the requirements of the guidelines 
is not eligible to receive reallotment of withheld funds.
    Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), EPA 
must obtain approval from the Office of Management and Budget (OMB) to 
collect information from the States required under the Operator 
Certification Guidelines as well as the Operator Certification Expense 
Reimbursement Grants Program. EPA is expecting to obtain approval of an 
Information Collection Request (ICR) for this information later this 
year. Advance notice of the ICR will be published in the Federal 
Register for public comment before it is submitted to OMB. EPA may not 
conduct, or sponsor, and a person is not required to submit to a 
collection of information unless the Agency has OMB approval for 
collection of the information.

B. General Review and Withholding Process Information

    This proposal covers the deadlines for States to submit their 
operator certification programs to EPA, time frames for EPA to review 
States programs, time frames for States to address any identified 
deficiencies, and time frames for EPA to make withholding decisions. 
DWSRF withholding decisions will be made on an annual basis once a 
State has received EPA approval that its program meets EPA's 
guidelines. Annual decisions will be based upon a State's ongoing 
implementation of its operator certification program.
    In developing an approach for reviewing State operator 
certification programs and making withholding decisions, EPA sought to: 
(a) Establish a consistent date for all States to meet the requirements 
of the guidelines; (b) provide States with sufficient time to make 
changes in their programs in response to EPA review before EPA 
permanently withholds funds; and (c) allow future operator 
certification program decisions to be made at the beginning of the 
fiscal year so that States can plan for their use of DWSRF program 
funds.
    States have two options for submitting their programs to EPA for 
review. Section 1419(c) recognizes that some States may have existing 
operator certification programs that meet the public health objectives 
of the guidelines and allows those States to submit their existing 
programs as ``substantially equivalent'' to the guidelines instead of 
requiring those States to make revisions to their programs. 
Alternatively, States that must make changes to their existing programs 
may submit revised programs to meet the requirements of EPA's 
guidelines.
    Section C explains EPA's proposed schedule for States that intend 
to submit their existing operator certification programs as 
``substantially equivalent'' programs. Section D explains EPA's 
proposed schedule for States planning to revise their operator 
certification programs.
    EPA is specifically seeking comment on the process for reviewing 
and making withholding determinations for operator certification 
program submittals. The two approaches will be finalized and published 
in the Federal Register after receiving public comment. These 
approaches will then be included as part of the final operator 
certification guidelines in section III (Program Submittal Process), 
subsection A (Submittal Schedule and Withholding Process), which is 
currently reserved.

C. Review Process and DWSRF Withholding Determinations for 
Substantially Equivalent State Operator Certification Programs

    As required by section 1419(c) of the SDWA, any State which submits 
its existing program to EPA as ``substantially equivalent'' to the EPA 
guidelines must do so by August 5, 2000. If EPA does not act on a 
program submitted as ``substantially equivalent'' within nine months of 
submittal, the program is deemed to meet the requirements of the 
guidelines. However, EPA will strive to complete its reviews of State 
programs within six months. States are encouraged to submit their final 
operator certification programs to EPA for review before the August 5, 
2000 deadline (Diagram 1 at the end of this section has been included 
as a visual aid for understanding the following schedule).
    The proposed approach for review of a State's initial operator 
certification program is:
     A State must submit its program to EPA for review by 
August 5, 2000. Any State program that is submitted after August 5, 
2000 will be considered a revised program and will follow the schedule 
in section D.
     Within six months of a State submittal, and no later than 
February 5, 2001, EPA will complete its review of a State program. At 
that time, EPA will either make a determination that the program is 
substantially equivalent or will issue a Notice of Disapproval and will 
provide a list of deficiencies to the State.
     A State has six months after receipt of a Notice of 
Disapproval to correct deficiencies and submit the changes to EPA. EPA 
will approve or disapprove the State's program by September 30, 2001.
    The proposed approach for withholding decisions based on a State's 
initial operator certification program submittal is:
     If a State program is submitted but EPA has not yet 
determined that it meets the guidelines on February 5, 2001, 20% of 
unawarded FY 2001 funds will be held back (but not permanently 
withheld).
     If a State program is approved by September 30, 2001, held 
back FY 2001 funds will be released to the State.
     On October 1, 2001, a State with a disapproved program 
will permanently lose any held back funds from FY 2001, plus 20% of FY 
2002 funds.
    The proposed approach for withholding decisions based on a State's 
annual operator certification program submittal is:
     Any State whose program is approved on or before September 
30, 2000 is required to undergo its first annual review of its operator 
certification program on or before September 30, 2001.
     If EPA finds that the State's annual submittal does not 
meet the guidelines, the State will permanently lose 20% of FY 2002 
funds on October 1, 2001.
     On or before September 30, 2002, and annually thereafter, 
EPA will review a State's operator certification program and make any 
necessary determinations to withhold funds from the upcoming fiscal 
year's allotment.

BILLING CODE 6560-50-P

[[Page 45059]]

[GRAPHIC] [TIFF OMITTED] TN20JY00.011

BILLING CODE 6560-50-C

[[Page 45060]]

D. Review Process and DWSRF Withholding Determinations for Revised 
State Operator Certification Programs

    If a State makes revisions to its existing program in order to meet 
the requirements of the guidelines, the State will submit its program 
as a revised program. States are required to submit their revised 
programs by February 5, 2001, however all States are encouraged to 
submit their operator certification programs to EPA for review before 
this deadline (Diagram 2 at the end of this section has been included 
as a visual aid for understanding the following schedule).
    The proposed approach for review of a State's initial operator 
certification program and for making withholding decisions is:
     A State must submit its initial operator certification 
program to EPA for review by February 5, 2001. If a State does not 
submit its program to EPA by February 5, 2001, the State will 
immediately lose 20% of unawarded FY 2001 funds. The guidelines require 
States to submit an Attorney General's certification, a full 
description and explanation of how the State's operator certification 
program complies with the requirements of the guidelines and a copy of 
the State's operator certification regulations. There may be situations 
where a State's legislative schedule would not allow a State to have 
final regulations certified by the Attorney General by February 5, 
2001. In these situations, States must submit regulations that have 
been adopted by the implementing agency or agencies but are awaiting 
legislative approval, a schedule for final adoption by the State 
legislature and a full description of how the State's program complies 
with the requirements of the guidelines. The State must submit its 
Attorney General's certification immediately once its regulations have 
been approved by the legislature, but no later than September 30, 2002.
     Between February 5, 2001, and September 30, 2002, EPA will 
hold back 20% of unawarded FY 2001 and FY 2002 funds from any State 
that submits its program to EPA by the February 5, 2001 deadline but 
that has not yet received EPA approval of its program.
     Within six months of a State's submittal date, EPA will 
complete its review of State programs that were submitted by the 
February 5, 2001 deadline. At that time, EPA will determine that either 
the State's program meets EPA's guidelines or will provide a list of 
deficiencies to the State.
     States have until September 30, 2002 to correct 
deficiencies and to receive EPA approval of its operator certification 
program in order to receive any FY 2001 and FY 2002 funds that were 
held back from the State.
     On September 30, 2002 a State that does not have an EPA 
approved program will lose any held back FY 2001 and FY 2002 funds.
     On October 1, 2002, a State that does not have an EPA 
approved program will lose 20% of its FY 2003 funds.
    The proposed approach for withholding decisions based on a State's 
annual operator certification program submittal is:
     Any State that has received EPA approval of its initial 
operator certification program before September 30, 2000 is required to 
undergo its first annual review of its operator certification program 
on or before September 30, 2001. If EPA finds that the State's annual 
submittal does not meet the guidelines, the State will permanently lose 
20% of its FY 2002 funds on October 1, 2001.
     Any State that receives EPA approval of its initial 
operator certification program between October 1, 2000 and September 
30, 2001 is required to undergo its first annual review of its operator 
certification program between October 1, 2001 and September 30, 2002. 
If EPA finds that the State's annual submittal does not meet the 
guidelines, the State will permanently lose 20% of its FY 2003 funds on 
October 1, 2002.
     On or before September 30, 2003, and annually thereafter, 
EPA will review a State's operator certification program and make any 
necessary determinations to withhold funds from the upcoming fiscal 
year's allotment.

[[Page 45061]]

[GRAPHIC] [TIFF OMITTED] TN20JY00.012


[[Page 45062]]



E. Validated Exam Issue

    The Final Guidelines for the Certification and Recertification of 
the Operators of Community and Nontransient Noncommunity Public Water 
Systems contains nine baseline standards that States are required to 
adopt and implement in their operator certification programs. States 
are required to classify all of their community and nontransient 
noncommunity water systems (including all treatment facilities and/or 
distribution systems). States are also required to develop specific 
operator certification and renewal requirements for each level of 
classification. The baseline standard for Operator Qualifications 
specifies that State programs must require that for an operator to 
become certified, the operator must ``take and pass an exam that 
demonstrates that the operator has the necessary skills, knowledge, 
ability and judgement as appropriate for the classification''. 
Furthermore, this baseline standard specifies that ``all exam questions 
must be validated''. At the end of the guidelines, EPA includes a 
definition of ``validated exam''. EPA defines a validated exam to be 
``an exam that is independently reviewed by subject matter experts to 
ensure that the exam is based on a job analysis and related to the 
classification of the system or facility''. EPA is requiring States to 
validate exams for operators because it will ensure that exams cover 
the fundamental skills, knowledge, ability and judgement required to 
safely operate water systems as well as determine the competency of 
operators.
    The requirement that ``all exam questions must be validated'' is 
not entirely consistent with the reference to ``validated exam''. EPA 
believes that an exam that is made up of validated questions may not 
include the full spectrum of information that an operator needs to know 
in order to properly operate a water system. EPA is therefore 
requesting comment on an amendment to the guidelines that would clarify 
EPA's intent that all exams, not just exam questions, be validated.

II. Proposed Allocation Methodology for the Operator Certification 
Expense Reimbursement Grants Program

A. Background

    Section 1419(d) of the SDWA requires EPA to reimburse the costs of 
training, including an appropriate per diem for unsalaried operators, 
and certification for persons operating community and nontransient 
noncommunity public water systems serving 3,300 persons or fewer that 
are required to undergo training pursuant to EPA's operator 
certification guidelines. The reimbursement is to be provided through 
grants to States. Each State is to receive an amount sufficient to 
cover the reasonable costs for training all such operators in the 
State. The amount each State will receive to cover the reasonable costs 
for training will be determined by the Administrator of EPA. Section 
1419(d) also authorizes an appropriation of $30 million in funding for 
this reimbursement each year from FY 1997 through FY 2003 and 
stipulates that, if this appropriation is not sufficient, EPA shall 
reserve these funds from the national DWSRF program appropriation. It 
is EPA's intention to set aside funds for expense reimbursement from 
the national DWSRF program appropriation.
    The grants are first to be used to provide reimbursement for 
training and certification costs of persons operating community and 
nontransient noncommunity water systems serving 3,300 persons or fewer. 
If a State has reimbursed all such costs, the State may, after notice 
to the Administrator, use any remaining funds from the grant for any of 
the other purposes authorized for capitalization grants under section 
1452 of the SDWA.

B. Administration of the Grants Program

    States may apply for and receive the expense reimbursement grant 
funds in accordance with the requirements of 40 CFR part 31 (Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
States and Local Governments) once their operator certification program 
has received approval by EPA. A State has two years from the date of 
initial program approval to apply for and receive its expense 
reimbursement grant. Funds not obligated within this two year period 
will be reallotted to States for use in the DWSRF program based on the 
formula used to allot the DWSRF funds. If sufficient funds are not 
available to fully fund the expense reimbursement grant, the two year 
period shall begin on the date the funds become available. EPA will 
notify States of the availability of funds.
    In order to receive funding, a State must submit an application for 
an expense reimbursement grant. EPA will require States to submit a 
work plan and annual progress report on how these funds are to be used 
in meeting the requirements of section 1419(d). After a State has 
reimbursed all such costs pursuant to section 1419(d)(1), the State 
may, after notice to the Administrator of EPA, use any remaining funds 
from the grant for any of the other purposes authorized for 
capitalization grants under section 1452 of the SDWA. The notification 
for using the remaining expense reimbursement grant funds for any of 
the other purposes authorized for capitalization grants under section 
1452 must include supporting documentation that the State has met the 
requirement for training and certifying its operators. The State will 
also be required to explain in a work plan how the remaining funds will 
be used. States will be given broad discretion on how to implement the 
expense reimbursement grants program to best meet the needs of the 
systems in the State and to minimize the administrative expenses in 
carrying out this program.
    EPA's intention to set aside funds for the expense reimbursement 
grants program from the national DWSRF program appropriation has 
triggered questions concerning whether EPA should require a 20% State 
match pursuant to section 1452(e). Even though the funds have been 
appropriated under section 1452, EPA believes that since the expense 
reimbursement grants program is authorized under section 1419(d), there 
should be no 20% match requirement for this grant because there are no 
match requirements for funds awarded pursuant to that section. EPA, 
however, believes that any remaining funds from this grant program that 
States may use for any of the other purposes authorized for 
capitalization grants under section 1452 should require a 20% match, 
and is specifically seeking comment on this issue.

C. Program Funding

    EPA estimates that between $97 million to $131 million will be 
needed for the expense reimbursement grants program between FY 1999, 
when the final operator certification guidelines were published, and FY 
2003, the last year for which these grants are authorized. This 
estimate represents the range of the total amount of funding that EPA 
believes is necessary to initially train and certify operators of 
community and nontransient noncommunity water systems serving 3,300 
persons or fewer to meet the requirements of the guidelines. EPA has 
developed this estimate based on the assumptions listed below:
Funding Assumptions
    1. Total number of community and nontransient noncommunity water 
systems serving 3,300 or fewer persons = 65,255 (from Safe Drinking 
Water Information System (SDWIS) database).

[[Page 45063]]

    2. Number of operators per system (see options listed below).
    3. \1/2\ of the operators would be unsalaried and therefore would 
be eligible for per diem.
    4. Per diem = $100/day (Per diem is a daily allowance that would 
cover the costs of lodging and meals; for unsalaried operators only).
    5. Four days of per diem assumed for class attendance (two days per 
training class).
    6. The cost of all training classes estimated at $300/class.
    7. Two training classes per operator for initial certification or 
certification renewal.
    8. $75 fee for initial certification/certification renewal.
    9. For mileage purposes, assume two round trips (one round trip for 
each training class).
    10. Number of miles per round trip = 200.
    11. Mileage reimbursement estimated at $.31/mile (for all 
operators).
    The range of the total amount of funding necessary for 
reimbursement is primarily driven by the number of operators per system 
who would require reimbursement. EPA is proposing three options for 
this assumption:
     2 operators per system
     1.5 operators per system
     2 operators per community water system (CWS) and 1 
operator per nontransient noncommunity water system (NTNCWS)
    EPA will determine the allotment for each State by substituting the 
number of community and nontransient noncommunity water systems serving 
3,300 persons or fewer for a particular State under Assumption #1.
    For example, if a State has 1,000 eligible water systems, the 
allocation would be calculated as follows using the option of 2 
operators per system:
Funding Assumptions
    1.Total number of community and nontransient noncommunity water 
systems serving 3,300 or fewer persons = 1,000.
    2. Number of operators per system = 2 x 1,000 = 2,000.
    3. \1/2\ of the operators would be unsalaried and therefore would 
be eligible for per diem = 2,000 x \1/2\ = 1,000.
    4. Per diem = $100/day (Per diem is a daily allowance that would 
cover the costs of lodging and meals; for unsalaried operators only) = 
1,000 x $100 = $100,000.
    5. Four days of per diem assumed for class attendance (two days per 
training class) = 4 x $100,000 = $400,000.
    6. The cost of all training classes estimated at $300/class.
    7. Two training classes per operator for initial certification or 
certification renewal = 2 x $300 x 2,000 = $1,200,000.
    8. $75 fee for initial certification/certification renewal = 
$75 x 2,000 = $150,000
    9. For mileage purposes, assume two round trips (one round trip for 
each training class).
    10. Number of miles per round trip = 200 x 2 = 400.
    11. Mileage reimbursement estimated at $.31/mile (for all 
operators) = 400 x $.31 x 2,000 operators = $248,000.
    By adding the dollar amounts listed under assumptions 5, 7, 8 and 
11, the proposed amount of money for the grant would be $1,998,000.
    EPA is seeking comment on the method for estimating costs, and 
specifically, on the following issues:
    1. Which one of the three options for the number of operators per 
system is the most reasonable for purposes of calculating the total 
amount of funding?
    2. Are the additional assumptions (1, 3-11) proposed for 
calculating the total amount of funding reasonable assumptions?
    3. Are there other assumptions that should be used?

D. Allocation Methodology

    EPA evaluated several options for allocating the funds among 
States. Four options that were evaluated for allocating the funds to 
States were: (1) An allocation methodology based on the 1999 Drinking 
Water Infrastructure Needs Survey; (2) an allocation methodology based 
on the Public Water System Supervision grants formula; (3) an 
allocation methodology based on the number of community and 
nontransient noncommunity water systems serving 3,300 or fewer in each 
State; and (4) an allocation methodology based solely on systems which 
must have a certified operator for the first time as a result of the 
newly published guidelines.
    EPA recommends allocating the funds based on the number of 
community and nontransient noncommunity water systems serving 3,300 or 
fewer in each State (option three). EPA believes that this allocation 
methodology is the most easily understood and it appears to be the most 
equitable option of those which were evaluated. The number of systems 
serving 3,300 persons or fewer is readily available from EPA's national 
SDWIS database.
    EPA's recommended approach of allocating the funds based on the 
number of community and nontransient noncommunity water systems serving 
3,300 or fewer in each State is supported by the National Drinking 
Water Advisory Council, which is a group of stakeholders consisting of 
members of the general public, State and local agencies, water systems 
and private groups concerned with safe drinking water.
    EPA believes that an allocation methodology based on the number of 
systems which must have a certified operator for the first time would 
penalize those States which already require small systems to have 
certified operators or would penalize those States that moved ahead to 
improve their operator certification programs before the guidelines 
were published. Currently, EPA cannot accurately predict the number of 
new operators that must be certified and/or identify systems with 
operators whose certification must be upgraded to meet the guidelines.
    EPA will finalize the allocation methodology and publish it in the 
Federal Register after receiving public comment.

    Dated: June 27, 2000.
J. Charles Fox,
Assistant Administrator, Office of Water.
[FR Doc. 00-18434 Filed 7-19-00; 8:45 am]
BILLING CODE 6560-50-P