[Title 40 CFR 142]
[Code of Federal Regulations (annual edition) - July 1, 2009 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)]
[Subchapter D - WATER PROGRAMS (CONTINUED)]
[Part 142 - NATIONAL PRIMARY DRINKING WATER REGULATIONS]
[From the U.S. Government Printing Office]
40PROTECTION OF ENVIRONMENT222009-07-012009-07-01falseNATIONAL PRIMARY DRINKING WATER REGULATIONS142PART 142PROTECTION OF ENVIRONMENTENVIRONMENTAL PROTECTION AGENCY (CONTINUED)WATER PROGRAMS (CONTINUED)
PART 142_NATIONAL PRIMARY DRINKING WATER REGULATIONS
IMPLEMENTATION--Table of Contents
Subpart A_General Provisions
Sec.
142.1 Applicability.
142.2 Definitions.
142.3 Scope.
142.4 State and local authority.
Subpart B_Primary Enforcement Responsibility
142.10 Requirements for a determination of primary enforcement
responsibility.
142.11 Initial determination of primary enforcement responsibility.
142.12 Revision of State programs.
142.13 Public hearing.
142.14 Records kept by States.
142.15 Reports by States.
142.16 Special primacy requirements.
142.17 Review of State programs and procedures for withdrawal of
approved primacy programs.
142.18 EPA review of State monitoring determinations.
142.19 EPA review of State implementation of national primary drinking
water regulations for lead and copper.
Subpart C_Review of State-Issued Variances and Exemptions
142.20 State-issued variances and exemptions under Section 1415(a) and
Section 1416 of the Act.
142.21 State consideration of a variance or exemption request.
142.22 Review of State variances, exemptions and schedules.
142.23 Notice to State.
142.24 Administrator's rescission.
Subpart D_Federal Enforcement
142.30 Failure by State to assure enforcement.
142.31 [Reserved]
142.32 Petition for public hearing.
142.33 Public hearing.
142.34 Entry and inspection of public water systems.
Subpart E_Variances Issued by the Administrator Under Section 1415(a) of
the Act
142.40 Requirements for a variance.
142.41 Variance request.
142.42 Consideration of a variance request.
142.43 Disposition of a variance request.
142.44 Public hearings on variances and schedules.
142.45 Action after hearing.
142.46 Alternative treatment techniques.
Subpart F_Exemptions Issued by the Administrator
142.50 Requirements for an exemption.
142.51 Exemption request.
142.52 Consideration of an exemption request.
142.53 Disposition of an exemption request.
142.54 Public hearings on exemption schedules.
142.55 Final schedule.
142.56 Extension of date for compliance.
142.57 Bottled water, point-of-use, and point-of-entry devices.
Subpart G_Identification of Best Technology, Treatment Techniques or
Other Means Generally Available
142.60 Variances from the maximum contaminant level for total
trihalomethanes.
142.61 Variances from the maximum contaminant level for fluoride.
142.62 Variances and exemptions from the maximum contaminant levels for
organic and inorganic chemicals.
[[Page 633]]
142.63 Variances and exemptions from the maximum contaminant level for
total coliforms.
142.64 Variances and exemptions from the requirements of part 141,
subpart H--Filtration and Disinfection.
142.65 Variances and exemptions from the maximum contaminant levels for
radionuclides.
Subpart H_Indian Tribes
142.72 Requirements for Tribal eligibility.
142.76 Request by an Indian Tribe for a determination of eligibility.
142.78 Procedure for processing an Indian Tribe's application.
Subpart I_Administrator's Review of State Decisions that Implement
Criteria Under Which Filtration Is Required
142.80 Review procedures.
142.81 Notice to the State.
Subpart J [Reserved]
Subpart K_Variances for Small System
General Provisions
142.301 What is a small system variance?
142.302 Who can issue a small system variance?
142.303 Which size public water systems can receive a small system
variance?
142.304 For which of the regulatory requirements is a small system
variance available?
142.305 When can a small system variance be granted by a State?
Review of Small System Variance Application
142.306 What are the responsibilities of the public water system, State
and the Administrator in ensuring that sufficient information
is available and for evaluation of a small system variance
application?
142.307 What terms and conditions must be included in a small system
variance?
Public Participation
142.308 What public notice is required before a State or the
Administrator proposes to issue a small system variance?
142.309 What are the public meeting requirements associated with the
proposal of a small system variance?
142.310 How can a person served by the public water system obtain EPA
review of a State proposed small system variance?
EPA Review and Approval of Small System Variances
142.311 What procedures allow for the Administrator to object to a
proposed small system variance or overturn a granted small
system variance for a public water system serving 3,300 or
fewer persons?
142.312 What EPA action is necessary when a State proposes to grant a
small system variance to a public water system serving a
population of more than 3,300 and fewer than 10,000 persons?
142.313 How will the Administrator review a State's program under this
subpart?
Authority: 42 U.S.C. 300f, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5,
300g-6, 300j-4, 300j-9, and 300j-11.
Source: 41 FR 2918, Jan. 20, 1976, unless otherwise noted.
Subpart A_General Provisions
Sec. 142.1 Applicability.
This part sets forth, pursuant to sections 1413 through 1416, 1445,
and 1450 of the Public Health Service Act, as amended by the Safe
Drinking Water Act, Public Law 93-523, regulations for the
implementation and enforcement of the national primary drinking water
regulations contained in part 141 of this chapter.
Sec. 142.2 Definitions.
As used in this part, and except as otherwise specifically provided:
Act means the Public Health Service Act.
Administrator means the Administrator of the United States
Environmental Protection Agency or his authorized representative.
Agency means the United States Environmental Protection Agency.
Approved State primacy program consists of those program elements
listed in Sec. 142.11(a) that were submitted with the initial State
application for primary enforcement authority and approved by the EPA
Administrator and all State program revisions thereafter that were
approved by the EPA Administrator.
Contaminant means any physical, chemical, biological, or
radiological substance or matter in water.
Federal agency means any department, agency, or instrumentality of
the United States.
[[Page 634]]
Indian Tribe means any Indian Tribe having a Federally recognized
governing body carrying out substantial governmental duties and powers
over a defined area.
Interstate Agency means an agency of two or more States established
by or under an agreement or compact approved by the Congress, or any
other agency of two or more States or Indian Tribes having substantial
powers or duties pertaining to the control of pollution as determined
and approved by the Administrator.
Maximum contaminant level means the maximum permissible level of a
contaminant in water which is delivered to the free flowing outlet of
the ultimate user of a public water system; except in the case of
turbidity where the maximum permissible level is measured at the point
of entry to the distribution system. Contaminants added to the water
under circumstances controlled by the user, except for those resulting
from corrosion of piping and plumbing caused by water quality are
excluded from this definition.
Municipality means a city, town, or other public body created by or
pursuant to State law, or an Indian Tribe which does not meet the
requirements of subpart H of this part.
National primary drinking water regulation means any primary
drinking water regulation contained in part 141 of this chapter.
Person means an individual; corporation; company; association;
partnership; municipality; or State, federal, or Tribal agency.
Primary enforcement responsibility means the primary responsibility
for administration and enforcement of primary drinking water regulations
and related requirements applicable to public water systems within a
State.
Public water system 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.
Sanitary survey means an onsite review of the water source,
facilities, equipment, operation and maintenance of a public water
system for the purpose of evaluating the adequacy of such source,
facilities, equipment, operation and maintenance for producing and
distributing safe drinking water.
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
[[Page 635]]
provisions in section 1401(4)(B)(i)(II) or (III).
State means one of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, the
Trust Territory of the Pacific Islands, or an eligible Indian tribe.
State primary drinking water regulation means a drinking water
regulation of a State which is comparable to a national primary drinking
water regulation.
State program revision means a change in an approved State primacy
program.
Supplier of water means any person who owns or operates a public
water system.
Treatment technique requirement means a requirement of the national
primary drinking water regulations which specifies for a contaminant a
specific treatment technique(s) known to the Administrator which leads
to a reduction in the level of such contaminant sufficient to comply
with the requirements of part 141 of this chapter.
[41 FR 2918, Jan. 20, 1976, as amended at 53 FR 37410, Sept. 26, 1988;
54 FR 52137, Dec. 20, 1989; 59 FR 64344, Dec. 14, 1994; 63 FR 23367,
Apr. 28, 1998]
Sec. 142.3 Scope.
(a) Except where otherwise provided, this part applies to each
public water system in each State; except that this part shall not apply
to a public water system which meets all of the following conditions:
(1) Which consists only of distribution and storage facilities (and
does not have any collection and treatment facilities);
(2) Which obtains all of its water from, but is not owned or
operated by, a public water system to which such regulations apply;
(3) Which does not sell water to any person; and
(4) Which is not a carrier which conveys passengers in interstate
commerce.
(b) In order to qualify for primary enforcement responsibility, a
State's program for enforcement of primary drinking water regulations
must apply to all other public water systems in the State, except for:
(1) Public water systems on carriers which convey passengers in
interstate commerce;
(2) Public water systems on Indian land with respect to which the
State does not have the necessary jurisdiction or its jurisdiction is in
question; or
(c) Section 1451 of the SDWA authorizes the Administrator to
delegate primary enforcement responsibility for public water systems to
Indian Tribes. An Indian Tribe must meet the statutory criteria at 42
U.S.C. 300j-11(b)(1) before it is eligible to apply for Public Water
System Supervision grants and primary enforcement responsibility. All
primary enforcement responsibility requirements of parts 141 and 142
apply to Indian Tribes except where specifically noted.
[41 FR 2918, Jan. 20, 1976, as amended at 53 FR 37410, Sept. 26, 1988;
59 FR 64344, Dec. 14, 1994; 67 FR 70858, Nov. 27, 2002]
Sec. 142.4 State and local authority.
Nothing in this part shall diminish any authority of a State or
political subdivision to adopt or enforce any law or regulation
respecting drinking water regulations or public water systems, but no
such law or regulation shall relieve any person of any requirements
otherwise applicable under this part.
Subpart B_Primary Enforcement Responsibility
Sec. 142.10 Requirements for a determination of primary enforcement responsibility.
A State has primary enforcement responsibility for public water
systems in the State during any period for which the Administrator
determines, based upon a submission made pursuant to Sec. 142.11, and
submission under Sec. 142.12, that such State, pursuant to appropriate
State legal authority:
(a) Has adopted drinking water regulations which are no less
stringent than the national primary drinking water regulations (NPDWRs)
in effect under part 141 of this chapter;
[[Page 636]]
(b) Has adopted and is implementing adequate procedures for the
enforcement of such State regulations, such procedures to include:
(1) Maintenance of an inventory of public water systems.
(2) A systematic program for conducting sanitary surveys of public
water systems in the State, with priority given to sanitary surveys of
public water systems not in compliance with State primary drinking water
regulations.
(3)(i) The establishment and maintenance of a State program for the
certification of laboratories conducting analytical measurements of
drinking water contaminants pursuant to the requirements of the State
primary drinking water regulations including the designation by the
State of a laboratory officer, or officers, certified by the
Administrator, as the official(s) responsible for the State's
certification program. The requirements of this paragraph may be waived
by the Administrator for any State where all analytical measurements
required by the State's primary drinking water regulations are conducted
at laboratories operated by the State and certified by the Agency. Until
such time as the Agency establishes a National quality assurance program
for laboratory certification the State shall maintain an interim program
for the purpose of approving those laboratories from which the required
analytical measurements will be acceptable.
(ii) Upon a showing by an Indian Tribe of an intergovernmental or
other agreement to have all analytical tests performed by a certified
laboratory, the Administrator may waive this requirement.
(4) Assurance of the availability to the State of laboratory
facilities certified by the Administrator and capable of performing
analytical measurements of all contaminants specified in the State
primary drinking water regulations. Until such time as the Agency
establishes a National quality assurance program for laboratory
certification the Administrator will approve such State laboratories on
an interim basis.
(5) The establishment and maintenance of an activity to assure that
the design and construction of new or substantially modified public
water system facilities will be capable of compliance with the State
primary drinking water regulations.
(6) Statutory or regulatory enforcement authority adequate to compel
compliance with the State primary drinking water regulations in
appropriate cases, such authority to include:
(i) Authority to apply State primary drinking water regulations to
all public water systems in the State covered by the national primary
drinking water regulations, except for interstate carrier conveyances
and systems on Indian land with respect to which the State does not have
the necessary jurisdiction or its jurisdiction is in question.
(ii) Authority to sue in courts of competent jurisdiction to enjoin
any threatened or continuing violation of the State primary drinking
water regulations.
(iii) Right of entry and inspection of public water systems,
including the right to take water samples, whether or not the State has
evidence that the system is in violation of an applicable legal
requirement.
(iv) Authority to require suppliers of water to keep appropriate
records and make appropriate reports to the State.
(v) Authority to require public water systems to give public notice
that is no less stringent than the EPA requirements in Subpart Q of Part
141 of this chapter and Sec. 142.16(a).
(vi) Authority to assess civil or criminal penalties for violation
of the State's primary drinking water regulations and public
notification requirements, including the authority to assess daily
penalties or multiple penalties when a violation continues;
(vii) Authority to require community water systems to provide
consumer confidence reports as required under 40 CFR part 141, subpart
O.
(c) Has established and will maintain record keeping and reporting
of its activities under paragraphs (a), (b) and (d) in compliance with
Sec. Sec. 142.14 and 142.15;
(d) Variances and exemptions. (1) If it permits small system
variances pursuant to Section 1415(e) of the Act, it
[[Page 637]]
must provide procedures no less stringent than the Act and Subpart K of
this part.
(2) If it permits variances (other than small system variances) or
exemptions, or both, from the requirements of the State primary drinking
water regulations, it shall do so under conditions and in a manner no
less stringent than the requirements of Sections 1415 and 1416 of the
Act. In granting these variances, the State must adopt the
Administrator's findings of best available technology, treatment
techniques, or other means available as specified in Subpart G of this
part. (States with primary enforcement responsibility may adopt
procedures different from those set forth in Subparts E and F of this
part, which apply to the issuance of variances (other than small system
variances) and exemptions by the Administrator in States that do not
have primary enforcement responsibility, provided that the State
procedures meet the requirements of this paragraph); and
(e) Has adopted and can implement an adequate plan for the provision
of safe drinking water under emergency circumstances 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.
(g) Has adopted regulations consistent with 40 CFR Part 3--
(Electronic reporting) if the state receives electronic documents.
(h) An Indian Tribe shall not be required to exercise criminal
enforcement jurisdiction to meet the requirements for primary
enforcement responsibility.
[41 FR 2918, Jan. 20, 1976, as amended at 43 FR 5373, Feb. 8, 1978; 52
FR 20675, June 2, 1987; 52 FR 41550, Oct. 28, 1987; 53 FR 37410, Sept.
26, 1988; 54 FR 15188, Apr. 17, 1989; 54 FR 52138, Dec. 20, 1989; 63 FR
23367, Apr. 28, 1998; 63 FR 43846, Aug. 14, 1998; 63 FR 44535, Aug. 19,
1998; 65 FR 26048, May 4, 2000; 70 FR 59888, Oct. 13, 2005]
Sec. 142.11 Initial determination of primary enforcement responsibility.
(a) A State may apply to the Administrator for a determination that
the State has primary enforcement responsibility for public water
systems in the State pursuant to section 1413 of the Act. The
application shall be as concise as possible and include a side-by-side
comparison of the Federal requirements and the corresponding State
authorities, including citations to the specific statutes and
administrative regulations or ordinances and, wherever appropriate,
judicial decisions which demonstrate adequate authority to meet the
requirements of Sec. 142.10. The following information is to be
included with the State application.
(1) The text of the State's primary drinking water regulations, with
references to those State regulations that vary from comparable
regulations set forth in part 141 of this chapter, and a demonstration
that any different State regulation is at least as stringent as the
comparable regulation contained in part 141.
(2) A description, accompanied by appropriate documentation, of the
State's procedures for the enforcement of the State primary drinking
water regulations. The submission shall include:
(i) A brief description of the State's program to maintain a current
inventory of public water systems.
(ii) A brief description of the State's program for conducting
sanitary surveys, including an explanation of the priorities given to
various classes of public water systems.
(iii) A brief description of the State's laboratory approval or
certification program, including the name(s) of the responsible State
laboratory officer(s) certified by the Administrator.
[[Page 638]]
(iv) Identification of laboratory facilities, available to the
State, certified or approved by the Administrator and capable of
performing analytical measurements of all contaminants specified in the
State's primary drinking water regulations.
(v) A brief description of the State's program activity to assure
that the design and construction of new or substantially modified public
water system facilities will be capable of compliance with the
requirements of the State primary drinking water regulations.
(vi) Copies of State statutory and regulatory provisions authorizing
the adoption and enforcement of State primary drinking water
regulations, and a brief description of State procedures for
administrative or judicial action with respect to public water systems
not in compliance with such regulations.
(3) A statement that the State will make such reports and will keep
such records as may be required pursuant to Sec. Sec. 142.14 and
142.15.
(4) If the State permits variances or exemptions from its primary
drinking water regulations, the text of the State's statutory and
regulatory provisions concerning variances and exemptions.
(5) A brief description of the State's plan for the provision of
safe drinking water under emergency conditions.
Note: In satisfaction of this requirement, for public water supplies
from groundwater sources, EPA will accept the contingency plan for
providing alternate drinking water supplies that is part of a State's
Wellhead Protection Program, where such program has been approved by EPA
pursuant to section 1428 of the SDWA.
(6)(i) A 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.
(7)(i) A statement by the State Attorney General (or the attorney
for the State primacy agency if it has independent legal counsel) or the
attorney representing the Indian tribe that certifies that the laws and
regulations adopted by the State or tribal ordinances to carry out the
program were duly adopted and are enforceable. State statutes and
regulations cited by the State Attorney General and tribal ordinances
cited by the attorney representing the Indian tribe shall be in the form
of lawfully adopted State statutes and regulations or tribal ordinances
at the time the certification is made and shall be fully effective by
the time the program is approved by EPA. To qualify as ``independent
legal counsel,'' the attorney signing the statement required by this
section shall have full authority to independently represent the State
primacy agency or Indian tribe in court on all matters pertaining to the
State or tribal program.
(ii) After EPA has received the documents required under paragraph
(a) of this section, EPA may selectively require supplemental statements
by the State Attorney General (or the attorney for the State primacy
agency if it has independent legal counsel) or the attorney representing
the Indian tribe. Each supplemental statement shall address all issues
concerning the adequacy of State authorities to meet the requirements of
Sec. 142.10 that have been identified by EPA after thorough examination
as unresolved by the documents submitted under paragraph (a) of this
section.
(b)(1) The administrator shall act on an application submitted
pursuant to Sec. 142.11 within 90 days after receiving such
application, and shall promptly inform the State in writing of this
action. If he denies the application, his written notification to the
State shall include a statement of reasons for the denial.
(2) A final determination by the Administrator that a State has met
or has not met the requirements for primary enforcement responsibility
shall
[[Page 639]]
take effect in accordance with the public notice requirements and
related procedures under Sec. 142.13.
(3) When the Administrator's determination becomes effective
pursuant to Sec. 142.13, it shall continue in effect unless terminated
pursuant to Sec. 142.17.
[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 52138, Dec. 20, 1989; 60
FR 33661, June 28, 1995; 63 FR 23367, Apr. 28, 1998]
Sec. 142.12 Revision of State programs.
(a) General requirements. Either EPA or the primacy State may
initiate actions that require the State to revise its approved State
primacy program. To retain primary enforcement responsibility, States
must adopt all new and revised national primary drinking water
regulations promulgated in part 141 of this chapter and any other
requirements specified in this part.
(1) Whenever a State revises its approved primacy program to adopt
new or revised Federal regulations, the State must submit a request to
the Administrator for approval of the program revision, using the
procedures described in paragraphs (b), (c), and (d) of this section.
The Administrator shall approve or disapprove each State request for
approval of a program revision based on the requirements of the Safe
Drinking Water Act and of this part.
(2) For all State program revisions not covered under Sec.
142.12(a)(1), the review procedures outlined in Sec. 142.17(a) shall
apply.
(b) Timing of State requests for approval of program revisions to
adopt new or revised Federal regulations. (1) Complete and final State
requests for approval of program revisions to adopt new or revised EPA
regulations must be submitted to the Administrator 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.
(2) The final date for submission of a complete and final State
request for a program revision may be extended by EPA for up to a two-
year period upon a written application by the State to the
Administrator. In the extension application the State must demonstrate
it is requesting the extension because it cannot meet the original
deadline for reasons beyond its control despite a good faith effort to
do so. The application must include a schedule for the submission of a
final request by a certain time and provide sufficient information to
demonstrate that the State:
(i)(A) Currently lacks the legislative or regulatory authority to
enforce the new or revised requirements, or
(B) Currently lacks the program capability adequate to implement the
new or revised requirements; or
(C) Is requesting the extension to group two or more program
revisions in a single legislative or regulatory action; and
(ii) Is implementing the EPA requirements to be adopted by the State
in its program revision pursuant to paragraph (b)(3) of this section
within the scope of its current authority and capabilities.
(3) To be granted an extension, the State must agree with EPA to
meet certain requirements during the extension period, which may include
the following types of activities as determined appropriate by the
Administrator on a case-by-case basis:
(i) Informing public water systems of the new EPA (and upcoming
State) requirements and that EPA will be overseeing implementation of
the requirements until the State, if eligible for interim primacy,
submits a complete and final primacy revision request to EPA, or in all
other cases, until EPA approves the State program revision;
(ii) Collecting, storing and managing laboratory results, public
notices, and other compliance and operation data required by the EPA
regulations;
(iii) Assisting EPA in the development of the technical aspects of
enforcement actions and conducting informal follow-up on violations
(telephone calls, letters, etc.);
(iv) Providing technical assistance to public water systems;
[[Page 640]]
(v) Providing EPA with all information prescribed by Sec. 142.15 of
this part on State reporting; and
(vi) For States whose request for an extension is based on a current
lack of program capability adequate to implement the new requirements,
taking steps agreed to by EPA and the State during the extension period
to remedy the deficiency.
(c) Contents of a State request for approval of a program revision.
(1) The State request for EPA approval of a program revision shall be
concise and must include:
(i) The documentation necessary (pursuant to Sec. 142.11(a)) to
update the approved State primacy program, and identification of those
elements of the approved State primacy program that have not changed
because of the program revision. The documentation shall include a side-
by-side comparison of the Federal requirements and the corresponding
State authorities, including citations to the specific statutes and
administrative regulations or ordinances and, wherever appropriate,
judicial decisions which demonstrate adequate authority to meet the
requirements of Sec. 142.10 as they apply to the program revision.
(ii) Any additional materials that are listed in Sec. 142.16 of
this part for a specific EPA regulation, as appropriate; and
(iii) For a complete and final State request only, unless one of the
conditions listed in paragraph (c)(2) of this section are met, a
statement by the State Attorney General (or the attorney for the State
primacy agency if it has independent legal counsel) or the attorney
representing the Indian tribe that certifies that the laws and
regulations adopted by the State or tribal ordinances to carry out the
program revision were duly adopted and are enforceable. State statutes
and regulations cited by the State Attorney General and tribal
ordinances cited by the attorney for the Indian tribe shall be in the
form of lawfully adopted State statutes and regulations or tribal
ordinances at the time the certification is made and shall be fully
effective by the time the request for program revision is approved by
EPA. To qualify as ``independent legal counsel,'' the attorney signing
the statement required by this section shall have full authority to
independently represent the State primacy agency or tribe in court on
all matters pertaining to the State or tribal program.
(2) An Attorney General's statement will be required as part of the
State request for EPA approval of a program revision unless EPA
specifically waives this requirement for a specific regulation at the
time EPA promulgates the regulation, or by later written notice from the
Administrator to the State.
(3) After EPA has received the documents required under paragraph
(c)(1) of this section, EPA may selectively require supplemental
statements by the State Attorney General (or the attorney for the State
primacy agency if it has independent legal counsel) or the attorney
representing the Indian tribe. Each supplemental statement shall address
all issues concerning the adequacy of State authorities to meet the
requirements of Sec. 142.10 that have been identified by EPA after
thorough examination as unresolved by the documents submitted under
paragraph (c)(1) of this section.
(d) Procedures for review of a State request for approval of a
program revision--(1) Preliminary request. (i) The State may submit to
the Administrator for his or her review a preliminary request for
approval of each program revision, containing the information listed in
paragraph (c)(1) of this section, in draft form. The preliminary request
does not require an Attorney General's statement in draft form, but does
require draft State statutory or regulatory changes and a side-by-side
comparison of State authorities with EPA requirements to demonstrate
that the State program revision meets EPA requirements under Sec.
142.10 of this part. The preliminary request should be submitted to the
Administrator as soon as practicable after the promulgation of the EPA
regulations.
(ii) The Administrator will review the preliminary request submitted
in accordance with paragraph (d)(1)(i) of this section and make a
tentative determination on the request. The Administrator will send the
tentative determination and other comments or suggestions to the State
for its use in
[[Page 641]]
developing the State's final request under paragraph (d)(2) of this
section.
(2) Final request. The State must submit a complete and final
request for approval of a program revision to the Administrator for his
or her review and approval. The request must contain the information
listed in paragraph (c)(1) of this section in complete and final form,
in accordance with any tentative determination EPA may have issued.
Complete and final State requests for program revisions shall be
submitted within two years of the promulgation of the new or revised EPA
regulations, as specified in paragraph (b) of this section.
(3) EPA's determination on a complete and final request. (i) The
Administrator shall act on a State's request for approval of a program
revision within 90 days after determining that the State request is
complete and final and shall promptly notify the State of his/her
determination.
(ii) If the Administrator disapproves a final request for approval
of a program revision, the Administrator will notify the State in
writing. Such notification will include a statement of the reasons for
disapproval.
(iii) A final determination by the Administrator on a State's
request for approval of a program revision shall take effect in
accordance with the public notice requirements and related procedures
under Sec. 142.13.
(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 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.
[54 FR 52138, Dec. 20, 1989, as amended at 63 FR 23367, Apr. 28, 1998;
66 FR 3780, Jan. 16, 2001]
Sec. 142.13 Public hearing.
(a) The Administrator shall provide an opportunity for a public
hearing before a final determination pursuant to Sec. 142.11 that the
State meets or does not meet the requirements for obtaining primary
enforcement responsibility, or a final determination pursuant to Sec.
142.12(d)(3) to approve or disapprove a State request for approval of a
program revision, or a final determination pursuant to Sec. 142.17 that
a State no longer meets the requirements for primary enforcement
responsibility.
(b) The Administrator shall publish notice of any determination
specified in paragraph (a) of this section in the Federal Register and
in a newspaper or newspapers of general circulation in the State
involved within 15 days after making such determination, with a
statement of his reasons for the determination. Such notice shall inform
interested persons that they may request a public hearing on the
Administrator's determination. Such notice shall also indicate one or
more locations in the State where information submitted by the State
pursuant to Sec. 142.11 is available for inspection by the general
public. A public hearing may be requested by any interested person other
than a Federal agency. Frivolous or insubstantial requests for hearing
may be denied by the Administrator.
(c) Requests for hearing submitted pursuant to paragraph (b) of this
section shall be submitted to the Administrator within 30 days after
publication of notice of opportunity for hearing in the Federal
Register. Such requests shall include the following information:
(1) The name, address and telephone number of the individual,
organization or other entity requesting a hearing.
(2) A brief statement of the requesting person's interest in the
Administrator's determination and of information that the requesting
person intends to submit at such hearing.
(3) The signature of the individual making the request; or, if the
request is made on behalf of an organization or other entity, the
signature of a responsible official of the organization or other entity.
(d) The Administrator shall give notice in the Federal Register and
in a
[[Page 642]]
newspaper or newspapers of general circulation in the State involved of
any hearing to be held pursuant to a request submitted by an interested
person or on his own motion. Notice of the hearing shall also be sent to
the person requesting a hearing, if any, and to the State involved.
Notice of the hearing shall include a statement of the purpose of the
hearing, information regarding the time and location or locations for
the hearing and the address and telephone number of an office at which
interested persons may obtain further information concerning the
hearing. At least one hearing location specified in the public notice
shall be within the involved State. Notice of hearing shall be given not
less than 15 days prior to the time scheduled for the hearing.
(e) Hearings convened pursuant to paragraph (d) of this section
shall be conducted before a hearing officer to be designated by the
Administrator. The hearing shall be conducted by the hearing officer in
an informal, orderly and expeditious manner. The hearing officer shall
have authority to call witnesses, receive oral and written testimony and
take such other action as may be necessary to assure the fair and
efficient conduct of the hearing. Following the conclusion of the
hearing, the hearing officer shall forward the record of the hearing to
the Administrator.
(f) After reviewing the record of the hearing, the Administrator
shall issue an order affirming the determination referred to in
paragraph (a) of this section or rescinding such determination. If the
determination is affirmed, it shall become effective as of the date of
the Administrator's order.
(g) If no timely request for hearing is received and the
Administrator does not determine to hold a hearing on his own motion,
the Administrator's determination shall become effective 30 days after
notice is issued pursuant to paragraph (b) of this section.
(h) If a determination of the Administrator that a State no longer
meets the requirements for primary enforcement responsibility becomes
effective, the State may subsequently apply for a determination that it
meets such requirements by submitting to the Administrator information
demonstrating that it has remedied the deficiencies found by the
Administrator without adversely sacrificing other aspects of its program
required for primary enforcement responsibility.
[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 52140, Dec. 20, 1989; 60
FR 33661, June 28, 1995]
Sec. 142.14 Records kept by States.
(a) Each State which has primary enforcement responsibility shall
maintain records of tests, measurements, analyses, decisions, and
determinations performed on each public water system to determine
compliance with applicable provisions of State primary drinking water
regulations.
(1) Records of microbiological analyses shall be retained for not
less than 1 year. Actual laboratory reports may be kept or data may be
transferred to tabular summaries, provided that the information retained
includes:
(i) The analytical method used;
(ii) The number of samples analyzed each month;
(iii) The analytical results, set forth in a form which makes
possible comparison with the limits specified in Sec. Sec. 141.63,
141.71, and 141.72 of this chapter.
(2) Records of microbiological analyses of repeat or special samples
shall be retained for not less than one year in the form of actual
laboratory reports or in an appropriate summary form.
(3) Records of turbidity measurements must be kept for not less than
one year. The information retained must be set forth in a form which
makes possible comparison with the limits specified in Sec. Sec.
141.71, 141.73, 141.173 and 141.175, 141.550-141.553 and 141.560-141.564
of this chapter. Until June 29, 1993, for any public water system which
is providing filtration treatment and until December 30, 1991, for any
public water system not providing filtration treatment and not required
by the State to provide filtration treatment, records kept must be set
forth in a form which makes possible comparison with the limits
contained in Sec. 141.13 of this chapter.
(4)(i) Records of disinfectant residual measurements and other
parameters
[[Page 643]]
necessary to document disinfection effectiveness in accordance with
Sec. Sec. 141.72 and 141.74 of this chapter and the reporting
requirements of Sec. Sec. 141.75, 141.175, and 141.570, of this chapter
must be kept for not less than one year.
(ii) Records of decisions made on a system-by-system and case-by-
case basis under provisions of part 141, subpart H, subpart P, or
subpart T of this chapter, must be made in writing and kept by the
State.
(A) Records of decisions made under the following provisions shall
be kept for 40 years (or until one year after the decision is reversed
or revised) and a copy of the decision must be provided to the system:
(1) Section 141.73(a)(1)--Any decision to allow a public water
system using conventional filtration treatment or direct filtration to
substitute a turbidity limit greater than 0.5 NTU;
(2) Section 141.73(b)(1)--Any decision to allow a public water
system using slow sand filtration to substitute a turbidity limit
greater than 1 NTU;
(3) Section 141.74(b)(2)--Any decision to allow an unfiltered public
water system to use continuous turbidity monitoring;
(4) Section 141.74(b)(6)(i)--Any decision to allow an unfiltered
public water system to sample residual disinfectant concentration at
alternate locations if it also has ground water source(s);
(5) Section 141.74(c)(1)--Any decision to allow a public water
system using filtration treatment to use continuous turbidity
monitoring; or a public water system using slow sand filtration or
filtration treatment other than conventional treatment, direct
filtration or diatomaceous earth filtration to reduce turbidity sampling
to once per day; or for systems serving 500 people or fewer to reduce
turbidity sampling to once per day;
(6) Section 141.74(c)(3)(i)--Any decision to allow a filtered public
water system to sample disinfectant residual concentration at alternate
locations if it also has ground water source(s);
(7) Section 141.75(a)(2)(ix)--Any decision to allow reduced
reporting by an unfiltered public water system;
(8) Section 141.75(b)(2)(iv)--Any decision to allow reduced
reporting by a filtered public water system; and
(9) Section 141.76--Any decisions made to approve alternate recycle
locations, require modifications to recycle return locations, or require
modifications to recycle practices.
(B) Records of decisions made under the following provisions shall
be kept for one year after the decision is made:
(1) Section 141.71(b)(1)(i)--Any decision that a violation of
monthly CT compliance requirements was caused by circumstances that were
unusual and unpredictable.
(2) Section 141.71(b)(1)(iv)--Any decision that a violation of the
disinfection effectiveness criteria was not caused by a deficiency in
treatment of the source water;
(3) Section 141.71(b)(5)--Any decision that a violation of the total
coliform MCL was not caused by a deficiency in treatment of the source
water;
(4) Section 141.74(b)(1)--Any decision that total coliform
monitoring otherwise required because the turbidity of the source water
exceeds 1 NTU is not feasible, except that if such decision allows a
system to avoid monitoring without receiving State approval in each
instance, records of the decision shall be kept until one year after the
decision is rescinded or revised.
(C) Records of decisions made under the following provisions shall
be kept for the specified period or 40 years, whichever is less.
(1) Section 141.71(a)(2)(i)--Any decision that an event in which the
source water turbidity which exceeded 5 NTU for an unfiltered public
water system was unusual and unpredictable shall be kept for 10 years.
(2) Section 141.71(b)(1)(iii)--Any decision by the State that
failure to meet the disinfectant residual concentration requirements of
Sec. 141.72(a)(3)(i) was caused by circumstances that were unusual and
unpredictable, shall be kept unless filtration is installed. A copy of
the decision must be provided to the system.
(3) Section 141.71(b)(2)--Any decision that a public water system's
watershed control program meets the requirements of this section shall
be kept until the next decision is available and filed.
[[Page 644]]
(4) Section 141.70(c)--Any decision that an individual is a
qualified operator for a public water system using a surface water
source or a ground water source under the direct influence of surface
water shall be maintained until the qualification is withdrawn. The
State may keep this information in the form of a list which is updated
periodically. If such qualified operators are classified by category,
the decision shall include that classification.
(5) Section 141.71(b)(3)--Any decision that a party other than the
State is approved by the State to conduct on-site inspections shall be
maintained until withdrawn. The State may keep this information in the
form of a list which is updated periodically.
(6) Section 141.71(b)(4)--Any decision that an unfiltered public
water system has been identified as the source of a waterborne disease
outbreak, and, if applicable, that it has been modified sufficiently to
prevent another such occurrence shall be kept until filtration treatment
is installed. A copy of the decision must be provided to the system.
(7) Section 141.72--Any decision that certain interim disinfection
requirements are necessary for an unfiltered public water system for
which the State has determined that filtration is necessary, and a list
of those requirements, shall be kept until filtration treatment is
installed. A copy of the requirements must be provided to the system.
(8) Section 141.72(a)(2)(ii)--Any decision that automatic shut-off
of delivery of water to the distribution system of an unfiltered public
water system would cause an unreasonable risk to health or interfere
with fire protection shall be kept until rescinded.
(9) Section 141.72(a)(4)(ii)--Any decision by the State, based on
site-specific considerations, that an unfiltered system has no means for
having a sample transported and analyzed for HPC by a certified
laboratory under the requisite time and temperature conditions specified
by Sec. 141.74(a)(3) and that the system is providing adequate
disinfection in the distribution system, so that the disinfection
requirements contained in Sec. 141.72(a)(4)(i) do not apply, and the
basis for the decision, shall be kept until the decision is reversed or
revised. A copy of the decision must be provided to the system.
(10) Section 141.72(b)(3)(ii)--Any decision by the State, based on
site-specific conditions, that a filtered system has no means for having
a sample transported and analyzed for HPC by a certified laboratory
under the requisite time and temperature conditions specified by Sec.
141.74(a)(3) and that the system is providing adequate disinfection in
the distribution system, so that the disinfection requirements contained
in Sec. 141.72(b)(3)(i) do not apply, and the basis for the decision,
shall be kept until the decision is reversed or revised. A copy of the
decision must be provided to the system.
(11) Section 141.73(d)--Any decision that a public water system,
having demonstrated to the State that an alternative filtration
technology, in combination with disinfection treatment, consistently
achieves 99.9 percent removal and/or inactivation of Giardia lamblia
cysts and 99.99 percent removal and/or inactivation of viruses, may use
such alternative filtration technology, shall be kept until the decision
is reversed or revised. A copy of the decision must be provided to the
system.
(12) Section 141.74(b), table 3.1--Any decision that a system using
either preformed chloramines or chloramines formed by the addition of
ammonia prior to the addition of chlorine has demonstrated that 99.99
percent removal and/or inactivation of viruses has been achieved at
particular CT values, and a list of those values, shall be kept until
the decision is reversed or revised. A copy of the list of required
values must be provided to the system.
(13) Section 141.74(b)(3)(v)--Any decision that a system using a
disinfectant other than chlorine may use CT99.9 values other
than those in tables 2.1 or 3.1 and/or other operational parameters to
determine if the minimum total inactivation rates required by Sec.
141.72(a)(1) are being met, and what those values or parameters are,
shall be kept until the decision is reversed or revised. A copy of the
list of required values or parameters must be provided to the system.
[[Page 645]]
(14) Section 142.16(b)(2)(i)(B)--Any decision that a system using a
ground water source is under the direct influence of surface water.
(iii) Records of any determination that a public water system
supplied by a surface water source or a ground water source under the
direct influence of surface water is not required to provide filtration
treatment shall be kept for 40 years or until withdrawn, whichever is
earlier. A copy of the determination must be provided to the system.
(5) Records of each of the following decisions made pursuant to the
total coliform provisions of part 141 shall be made in writing and
retained by the State.
(i) Records of the following decisions must be retained for 5 years.
(A) Section 141.21(b)(1)--Any decision to waive the 24-hour time
limit for collecting repeat samples after a total coliform-positive
routine sample if the public water system has a logistical problem in
collecting the repeat sample that is beyond the system's control, and
what alternative time limit the system must meet.
(B) Section 141.21(b)(5)--Any decision to allow a system to waive
the requirement for five routine samples the month following a total
coliform-positive sample. If the waiver decision is made as provided in
Sec. 141.21(b)(5), the record of the decision must contain all the
items listed in that paragraph.
(C) Section 141.21(c)--Any decision to invalidate a total coliform-
positive sample. If the decision to invalidate a total coliform-positive
sample as provided in Sec. 141.21(c)(1)(iii) is made, the record of the
decision must contain all the items listed in that paragraph.
(ii) Records of each of the following decisions must be retained in
such a manner so that each system's current status may be determined.
(A) Section 141.21(a)(2)--Any decision to reduce the total coliform
monitoring frequency for a community water system serving 1,000 persons
or fewer, that has no history of total coliform contamination in its
current configuration and had a sanitary survey conducted within the
past five years showing that the system is supplied solely by a
protected groundwater source and is free of sanitary defects, to less
than once per month, as provided in Sec. 141.21(a)(2); and what the
reduced monitoring frequency is. A copy of the reduced monitoring
frequency must be provided to the system.
(B) Section 141.21(a)(3)(i)--Any decision to reduce the total
coliform monitoring frequency for a non-community water system using
only ground water and serving 1,000 persons or fewer to less than once
per quarter, as provided in Sec. 141.21(a)(3)(i), and what the reduced
monitoring frequency is. A copy of the reduced monitoring frequency must
be provided to the system.
(C) Section 141.21(a)(3)(ii)--Any decision to reduce the total
coliform monitoring frequency for a non-community water system using
only ground water and serving more than 1,000 persons during any month
the system serves 1,000 persons or fewer, as provided in Sec.
141.21(a)(3)(ii). A copy of the reduced monitoring frequency must be
provided to the system.
(D) Section 141.21(a)(5)--Any decision to waive the 24-hour limit
for taking a total coliform sample for a public water system which uses
surface water, or ground water under the direct influence of surface
water, and which does not practice filtration in accordance with part
141, subpart H, and which measures a source water turbidity level
exceeding 1 NTU near the first service connection as provided in Sec.
141.21(a)(5).
(E) Section 141.21(d)(1)--Any decision that a non-community water
system is using only protected and disinfected ground water and
therefore may reduce the frequency of its sanitary survey to less than
once every five years, as provided in Sec. 141.21(d), and what that
frequency is. A copy of the reduced frequency must be provided to the
system.
(F) Section 141.21(d)(2)--A list of agents other than the State, if
any, approved by the State to conduct sanitary surveys.
(G) Section 141.21(e)(2)--Any decision to allow a public water
system to forgo fecal coliform or E. coli testing on a total coliform-
positive sample if that system assumes that the total coliform-positive
sample is fecal coliform-positive or E. coli- positive, as provided in
Sec. 141.21(e)(2).
[[Page 646]]
(6) Records of analysis for other than microbiological contaminants
(including total coliform, fecal coliform, and heterotrophic plate
count), residual disinfectant concentration, other parameters necessary
to determine disinfection effectiveness (including temperature and pH
measurements), and turbidity shall be retained for not less than 12
years and shall include at least the following information:
(i) Date and place of sampling.
(ii) Date and results of analyses.
(7) Any decisions made pursuant to the provisions of part 141,
subpart P or subpart T of this chapter.
(i) Records of systems consulting with the State concerning a
modification to disinfection practice under Sec. Sec. 141.170(d),
141.172(c), and 141.542 of this chapter, including the status of the
consultation.
(ii) Records of decisions that a system using alternative filtration
technologies, as allowed under Sec. Sec. 141.173(b) and Sec. 141.552
of this chapter, can consistently achieve a 99.9 percent removal and/or
inactivation of Giardia lamblia cysts, 99.99 percent removal and/or
inactivation of viruses, and 99 percent removal of Cryptosporidium
oocysts. The decisions must include State-set enforceable turbidity
limits for each system. A copy of the decision must be kept until the
decision is reversed or revised. The State must provide a copy of the
decision to the system.
(iii) Records of systems required to do filter self-assessment, CPE,
or CCP under the requirements of Sec. Sec. 141.175 and 141.563 of this
chapter.
(8) Any decisions made pursuant to the provisions of 40 CFR part
141, subparts U and V of this part.
(i) IDSE monitoring plans, plus any modifications required by the
State, must be kept until replaced by approved IDSE reports.
(ii) IDSE reports and 40/30 certifications, plus any modifications
required by the State, must be kept until replaced or revised in their
entirety.
(iii) Operational evaluations submitted by a system must be kept for
10 years following submission.
(9) Any decisions made pursuant to the provisions of part 141,
subpart W of this chapter.
(i) Results of source water E. coli and Cryptosporidium monitoring.
(ii) The bin classification after the initial and after the second
round of source water monitoring for each filtered system, as described
in Sec. 141.710 of this chapter.
(iii) Any change in treatment requirements for filtered systems due
to watershed assessment during sanitary surveys, as described in Sec.
141.711(d) of this chapter.
(iv) The determination of whether the mean Cryptosporidium level is
greater than 0.01 oocysts/L after the initial and after the second round
of source water monitoring for each unfiltered system, as described in
Sec. 141.712(a) of this chapter.
(v) The treatment processes or control measures that systems use to
meet their Cryptosporidium treatment requirements under Sec. 141.711 or
Sec. 141.712 of this chapter.
(vi) A list of systems required to cover or treat the effluent of an
uncovered finished water storage facility, as specified in Sec. 141.714
of this chapter.
(b) Records required to be kept pursuant to paragraph (a) of this
section must be in a form admissible as evidence in State enforcement
proceedings.
(c) Each State which has primary enforcement responsibility shall
maintain current inventory information for every public water system in
the State and shall retain inventory records of public water systems for
not less than 12 years.
(d) Each State which has primary enforcement responsibility shall
retain, for not less than 12 years, files which shall include for each
such public water system in the State:
(1) Reports of sanitary surveys;
(2) Records of any State approvals;
(3) Records of any enforcement actions.
(4) A record of the most recent vulnerability determination,
including the monitoring results and other data supporting the
determination, the State's findings based on the supporting data and any
additional bases for such determination; except that it shall be kept in
perpetuity or until a more current vulnerability determination has been
issued.
[[Page 647]]
(5) A record of all current monitoring requirements and the most
recent monitoring frequency decision pertaining to each contaminant,
including the monitoring results and other data supporting the decision,
the State's findings based on the supporting data and any additional
bases for such decision; except that the record shall be kept in
perpetuity or until a more recent monitoring frequency decision has been
issued.
(6) A record of the most recent asbestos repeat monitoring
determination, including the monitoring results and other data
supporting the determination, the State's findings based on the
supporting data and any additional bases for the determination and the
repeat monitoring frequency; except that these records shall be
maintained in perpetuity or until a more current repeat monitoring
determination has been issued.
(7) Records of annual certifications received from systems pursuant
to part 141, subpart K demonstrating the system's compliance with the
treatment techniques for acrylamide and/or epichlorohydrin in Sec.
14.111.
(8) Records of the currently applicable or most recent State
determinations, including all supporting information and an explanation
of the technical basis for each decision, made under the following
provisions of 40 CFR, part 141, subpart I for the control of lead and
copper:
(i) Section 141.81(b)--for any water system deemed to be optimized
under Sec. 141.81(b)(1) or (b)(3) of this chapter, any conditions
imposed by the State on specific water systems to ensure the continued
operation and maintenance of corrosion control treatment in place;
(ii) Section 141.82(b)--decisions to require a water system to
conduct corrosion control treatment studies;
(iii) Section 141.82(d)--designations of optimal corrosion control
treatment;
(iv) Section 141.82(f)--designations of optimal water quality
parameters;
(v) Section 141.82(h)--decisions to modify a public water system's
optimal corrosion control treatment or water quality parameters;
(vi) Section 141.83(b)(2)--determinations of source water treatment;
(vii) Section 141.83(b)(4)--designations of maximum permissible
concentrations of lead and copper in source water;
(viii) Section 141.84(e)--determinations establishing shorter lead
service line service line replacement schedules under Sec. 141.84;
(ix) Sections 141.81(b)(3)(iii), 141.86(d)(4)(vii), and
141.86(g)(4)(iii)--determinations of additional monitoring requirements
and/or other actions required to maintain optimal corrosion control by
systems monitoring for lead and copper at the tap less frequently than
once every six months that change treatment or add a new source of
water;
(x) Section 141.85--system-specific decisions regarding the content
of written public education materials and/or the distribution of these
materials;
(xi) Section 141.86(b)(5)--system-specific determinations regarding
use of non-first-draw samples at non-transient non-community water
systems, and community water systems meeting the criteria of Sec.
141.85(b)(7)(i) and (ii) of this chapter, that operate 24 hours a day;
(xii) Section 141.86(c)--system-specific designations of sampling
locations for systems subject to reduced monitoring;
(xiii) Section 141.86(d)(iv)(A)--system-specific determinations
pertaining to alternative sample collection periods for systems subject
to reduced monitoring;
(xiv) Section 141.86(g)--determinations of small system monitoring
waivers, waiver recertifications, and waiver revocations;
(xv) Section 141.87(c)(3)--determinations regarding representative
entry point locations at ground water systems;
(xvi) Section 141.90(e)(4)--system-specific determinations regarding
the submission of information to demonstrate compliance with partial
lead service line replacement requirements; and
(xvii) Section 141.90(f)--system-specific decisions regarding the
resubmission of detailed documentation demonstrating completion of
public education requirements.
(9) Records of reports and any other information submitted by PWSs
under
[[Page 648]]
Sec. 141.90 of this chapter, including records of any 90th percentile
values calculated by the State under Sec. 141.90(h) of this chapter.
(10) Records of State activities, and the results thereof, to:
(i) Verify compliance with State determinations issued under
Sec. Sec. 141.82(f) of this chapter, 141.82(h) of this chapter,
141.83(b)(2) of this chapter, and 141.83(b)(4) of this chapter;
(ii) Verify compliance with the requirements related to partial lead
service line replacement under Sec. 141.84(d) of this chapter and
compliance with lead service line replacement schedules under Sec.
141.84(e) of this chapter; and
(iii) Invalidate tap water lead and copper samples under Sec.
141.86(f) of this chapter.
(11) Records of each system's currently applicable or most recently
designated monitoring requirements. If, for the records identified in
paragraphs (d)(8)(i) through (d)(8)(xvii) of this section, no change is
made to State determinations during a 12-year retention period, the
State shall retain the record until a new decision, determination, or
designation has been issued.
(12) Records of the currently applicable or most recent State
determinations, including all supporting information and an explanation
of the technical basis for each decision, made under the following
provisions of 40 CFR part 141, subpart L for the control of
disinfectants and disinfection byproducts. These records must also
include interim measures toward installation.
(i) States must keep records of systems that are installing GAC or
membrane technology in accordance with Sec. 141.64(b)(2) of this
chapter. These records must include the date by which the system is
required to have completed installation.
(ii) States must keep records of systems that are required, by the
State, to meet alternative minimum TOC removal requirements or for whom
the State has determined that the source water is not amenable to
enhanced coagulation in accordance with Sec. 141.135(b)(3) and (4) of
this chapter, respectively. These records must include the alternative
limits and rationale for establishing the alternative limits.
(iii) States must keep records of subpart H systems using
conventional treatment meeting any of the alternative compliance
criteria in Sec. 141.135(a)(2) or (3) of this chapter.
(iv) States must keep a register of qualified operators that have
met the State requirements developed under Sec. 142.16(h)(2).
(13) Records of systems with multiple wells considered to be one
treatment plant in accordance with Sec. 141.132(a)(2) of this chapter
and Sec. 142.16(h)(5).
(14) Monitoring plans for subpart H systems serving more than 3,300
persons in accordance with Sec. 141.132(f) of this chapter.
(15) List of laboratories approved for analyses in accordance with
Sec. 141.131(b) of this chapter.
(16) List of systems required to monitor for disinfectants and
disinfection byproducts in accordance with part 141, subpart L of this
chapter. The list must indicate what disinfectants and DBPs, other than
chlorine, TTHM, and HAA5, if any, are measured.
(17) Records of the currently applicable or most recent State
determination, including all supporting information and an explanation
of the technical basis of each decision, made under the following
provisions of 40 CFR part 141, subpart S and 40 CFR part 142.
(i) Section 142.16(o)(2)(v). Records of written notices of
significant deficiencies.
(ii) Section 141.403(a)(5)(ii) of this chapter. Records of
corrective action plans, schedule approvals, and State-specified interim
measures.
(iii) Section 142.16(o)(4). Records of confirmations under Sec.
141.403(a) of this chapter that a significant deficiency has been
corrected or the fecal contamination in the ground water source has been
addressed.
(iv) Section 141.402(a)(5) of this chapter. Records of State
determinations and records of ground water system's documentation for
not conducting triggered source water monitoring.
(v) Section 141.402(d) of this chapter. Records of invalidations of
fecal indicator-positive ground water source samples.
[[Page 649]]
(vi) Section 141.402(a)(2)(ii) of this chapter. Records of State
approvals of source water monitoring plans.
(vii) Section 142.16(o)(4)(ii). Records of notices of the minimum
residual disinfection concentration (when using chemical disinfection)
needed to achieve at least 4-log virus inactivation before or at the
first customer.
(viii) Sections 142.16(o)(4)(iv) and 142.16(o)(4)(v) Records of
notices of the State-specified monitoring and compliance requirements
(when using membrane filtration or alternative treatment) needed to
achieve at least 4-log treatment of viruses (using inactivation,
removal, or a State-approved combination of 4-log inactivation and
removal) before or at the first customer.
(ix) Sections 141.403(b)(1) and 141.403(b)(2) of this chapter.
Records of written notices from the ground water system that it provides
at least 4-log treatment of viruses (using inactivation, removal, or a
State-approved combination of 4-log virus inactivation and removal)
before or at the first customer for a ground water source.
(x) Section 142.16(o)(4)(vi). Records of written determinations that
the ground water system may discontinue 4-log treatment of viruses
(using inactivation, removal, or a State-approved combination of 4-log
inactivation and removal).
(e) Each State which has primary enforcement responsibility shall
retain records pertaining to each variance and exemption granted by it
for a period of not less than 5 years following the expiration of such
variance or exemption.
(f) Public notification records under Subpart Q of Part 141 of this
chapter received from public water systems (including certifications of
compliance and copies of public notices) and any state determinations
establishing alternative public notification requirements for the water
systems must be retained for three years.
(g) Records required to be kept under this section shall be
available to the Regional Administrator upon request. The records
required to be kept under this section shall be maintained and made
available for public inspection by the State, or, the State at its
option may require suppliers of water to make available for public
inspection those records maintained in accordance with Sec. 141.33.
[41 FR 2918, Jan. 20, 1976]
Editorial Note: For Federal Register citations affecting Sec.
142.14, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 142.15 Reports by States.
Each State which has primary enforcement responsibility shall submit
to the Administrator the following information:
(a) Each State which has primary enforcement responsibility shall
submit quarterly reports to the Administrator on a schedule and in a
format prescribed by the Administrator, consisting of the following
information:
(1) New violations by public water systems in the State during the
previous quarter of State regulations adopted to incorporate the
requirements of national primary drinking water regulations, including
violations of the public notification requirements under Subpart Q of
Part 141 of this chapter;
(2) New enforcement actions taken by the State during the previous
quarter against public water systems with respect to State regulations
adopted to incorporate the requirements of national primary drinking
water regulations;
(3) Notification of any new variance or exemption granted during the
previous quarter. The notice shall include a statement of reasons for
the granting of the variance or exemption, including documentation of
the need for the variance or exemption and the finding that the granting
of the variance or exemption will not result in an unreasonable risk to
health. The State may use a single notification statement to report two
or more similar variances or exemptions.
(b) Each State which has primary enforcement responsibility shall
submit annual reports to the Administrator on a schedule and in a format
prescribed by the Administrator, consisting of the following
information:
(1) All additions or corrections to the State's inventory of public
water systems;
[[Page 650]]
(2) A summary of the status of each variance and exemption currently
in effect.
(c) Special reports--(1) Surface Water Treatment Rule. (i)(A) A list
identifying the name, PWS identification number and date of the
determination for each public water system supplied by a surface water
source or a ground water source under the direct influence of surface
water, which the State has determined is not required to provide
filtration treatment.
(B) A list identifying the name and PWS identification number of
each public water system supplied by a surface water source or ground
water source under the direct influence of surface water, which the
State has determined, based on an evaluation of site-specific
considerations, has no means of having a sample transported and analyzed
for HPC by a certified laboratory under the requisite time and
temperature conditions specified in Sec. 141.74(a)(3) and is providing
adequate disinfection in the distribution system, regardless of whether
the system is in compliance with the criteria of Sec. 141.72 (a)(4)(i)
or (b)(3)(i) of this chapter, as allowed by Sec. 141.72 (a)(4)(ii) and
(b)(3)(ii). The list must include the effective date of each
determination.
(ii) Notification within 60 days of the end of the calendar quarter
of any determination that a public water system using a surface water
source or a ground water source under the direct influence of surface
water is not required to provide filtration treatment. The notification
must include a statement describing the system's compliance with each
requirement of the State's regulations that implement Sec. 141.71 and a
summary of comments, if any, received from the public on the
determination. A single notification may be used to report two or more
such determinations.
(2) Total coliforms. A list of public water systems which the State
is allowing to monitor less frequently than once per month for community
water systems or less frequently than once per quarter for non-community
water systems as provided in Sec. 141.21(a), including the effective
date of the reduced monitoring requirement for each system.
(3) [Reserved]
(4) States shall report quarterly, in a format and on a schedule
prescribed by the Administrator, the following information related to
each system's compliance with the treatment techniques for lead and
copper under 40 CFR part 141, subpart I during the preceding calendar
quarter. Specifically, States shall report as follows:
(i) For any reports provided prior to May 15, 2000, States shall
report the name and PWS identification number:
(A) Each public water system which exceeded the lead and copper
action levels and the date upon which the exceedance occurred;
(B) Each public water system required to complete the corrosion
control evaluation specified in Sec. 141.82(c) and the date the State
received the results of the evaluations from each system;
(C) Each public water system for which the State has designated
optimal corrosion control treatment under Sec. 141.82(d), the date of
the determination, and each system that completed installation of
treatment as certified under Sec. 141.90(c)(3);
(D) Each public water system for which the State has designated
optimal water quality parameters under Sec. 141.82(f) and the date of
the determination;
(E) Each public water system which the State has required to install
source water treatment under Sec. 141.83(b)(2), the date of the
determination, and each system that completed installation of treatment
as certified under Sec. 141.90(d)(2);
(F) Each public water system for which the State has specified
maximum permissible source water levels under Sec. 141.83(b)(4); and
(G) Each public water system required to begin replacing lead
service lines as specified in Sec. 141.84, each public water system for
which the State has established a replacement schedule under Sec.
141.84(f), and each system reporting compliance with its replacement
schedule under Sec. 141.90(e)(2).
(ii) For any reports provided after May 14, 2000 and before January
14, 2002, States may report in accordance with either paragraph
(c)(4)(i) or (c)(4)(iii) of this section.
[[Page 651]]
(iii) For all reports submitted on or after January 14, 2002, States
shall report the PWS identification number of each public water system
identified in paragraphs (c)(4)(iii)(A) through (F) of this section.
(A) For each large and medium-size public water system, all 90th
percentile lead levels calculated during each monitoring period
specified in Sec. 141.86 of this chapter, and the first and last day of
the monitoring period for which the 90th percentile lead level was
calculated;
(B) For each small public water system, the 90th percentile lead
level calculated during each monitoring period in which the system
exceeds the lead action level, and the first and last day of each
monitoring period in which an exceedance occurred;
(C) For each public water system (regardless of size), the 90th
percentile copper level calculated during each monitoring period in
which the system exceeds the copper action level, and the first and last
day of each monitoring period in which an exceedance occurred;
(D) For each public water system for which the State has designated
optimal water quality parameters under Sec. 141.82(f) of this chapter,
or which the State has deemed to have optimized corrosion control under
Sec. 141.81(b)(1) or (b)(3) of this chapter, the date of the
determination and the paragraph(s) under which the State made its
determination;
(E) For each public water system required to begin replacing lead
service lines as specified in Sec. 141.84 of this chapter and the date
each system must begin replacement; and
(F) For each public water system that has implemented optimal
corrosion control, completed applicable source water treatment
requirements pursuant to Sec. 141.83 of this chapter and/or completed
lead service line replacement requirements pursuant to Sec. 141.84 of
this chapter, and the date of the State's determination that these
requirements have been met. The date reported shall be the latest of the
following events:
(1) The date the State designates optimal water quality parameters
under Sec. 141.82(f) of this chapter or deems the system to have
optimized corrosion control pursuant to Sec. 141.81(b)(1) or (b)(3) of
this chapter;
(2) For systems triggered into source water treatment, the date the
State designates maximum permissible source water levels under Sec.
141.83(b)(4) of this chapter or determines pursuant to Sec.
141.83(b)(2) of this chapter that source water treatment is not
required; or
(3) For systems triggered into lead service line replacement, the
date the system completes lead service line replacement or becomes
eligible to cease lead service line replacement pursuant to Sec.
141.84(f) of this chapter.
(5) Sanitary surveys. A list of subpart H systems that have had a
sanitary survey completed during the previous year and an annual
evaluation of the State's program for conducting sanitary surveys under
Sec. 142.16(b)(3) of this chapter.
(6) Subpart W. (i) The bin classification after the initial and
after the second round of source water monitoring for each filtered
system, as described in Sec. 141.710 of this chapter.
(ii) Any change in treatment requirements for these systems due to
watershed assessment during sanitary surveys, as described in Sec.
141.711(d) of this chapter.
(iii) The determination of whether the mean Cryptosporidium level is
greater than 0.01 oocysts/L both after the initial and after the second
round of source water monitoring for each unfiltered system, as
described in Sec. 141.712(a) of this chapter.
(7) Ground water rule--(i) Sanitary surveys. The month and year in
which the most recent sanitary survey was completed or, for a State that
uses a phased review process, the date the last element of the
applicable eight elements was evaluated under Sec. 142.16(o)(2) for
each ground water system.
(ii) Corrective action requirements. For any corrective action under
Sec. 141.403(a) of this chapter, the date the ground water system
completed corrective action.
(iii) Compliance monitoring. All ground water systems providing at
least 4-log treatment of viruses (using inactivation, removal, or a
State-approved combination of 4-log virus inactivation
[[Page 652]]
and removal) before or at the first customer for any ground water
source(s).
(d) The reports submitted pursuant to this section shall be made
available by the State to the public for inspection at one or more
locations within the State.
[41 FR 2918, Jan. 20, 1976]
Editorial Note: For Federal Register citations affecting Sec.
142.15, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 142.16 Special primacy requirements.
(a) State public notification requirements.
(1) Each State that has primary enforcement authority under this
part must submit complete and final requests for approval of program
revisions to adopt the requirements of Subpart Q of Part 141 of this
chapter, using the procedures in Sec. 142.12(b) through (d). At its
option, a State may, by rule, and after notice and comment, establish
alternative public notification requirements with respect to the form
and content of the public notice required under Subpart Q of Part 141 of
this chapter. The alternative requirements must provide the same type
and amount of information required under Subpart Q and must meet the
primacy requirements under Sec. 142.10.
(2) As part of the revised primacy program, a State must also
establish enforceable requirements and procedures when the State adds to
or changes the requirements under:
(i) Table 1 to 40 CFR 141.201(a)(Item (3)(v))--To require public
water systems to give a public notice for violations or situations other
than those listed in Appendix A of Subpart Q of Part 141 of this
chapter;
(ii) 40 CFR 141.201(c)(2)--To allow public water systems, under the
specific circumstances listed in Sec. 141.201(c)(2), to limit the
distribution of the public notice to persons served by the portion of
the distribution system that is out of compliance;
(iii) Table 1 of 40 CFR 141.202(a) (Items (5), (6), and (9))--To
require public water systems to give a Tier 1 public notice (rather than
a Tier 2 or Tier 3 notice) for violations or situations listed in
Appendix A of Subpart Q of Part 141 of this chapter;
(iv) 40 CFR 141.202(b)(3)--To require public water systems to comply
with additional Tier 1 public notification requirements set by the State
subsequent to the initial 24-hour Tier 1 notice, as a result of their
consultation with the State required under Sec. Sec. 141.202(b)(2);
(v) 40 CFR 141.202(c), 141.203(c) and 141.204(c)--To require a
different form and manner of delivery for Tier 1, 2 and 3 public
notices.
(vi) Table 1 to 40 CFR 141.203(a) (Item (2))--To require the public
water systems to provide a Tier 2 public notice (rather than Tier (3))
for monitoring or testing procedure violations specified by the State;
(vii) 40 CFR 141.203(b)(1)--To grant public water systems an
extension up to three months for distributing the Tier 2 public notice
in appropriate circumstances (other than those specifically excluded in
the rule);
(viii) 40 CFR 141.203(b)(2)--To grant a different repeat notice
frequency for the Tier 2 public notice in appropriate circumstances
(other than those specifically excluded in the rule), but no less
frequently than once per year;
(ix) 40 CFR 141.203(b)(3)--To respond within 24 hours to a request
for consultation by the public water system to determine whether a Tier
1 (rather than a Tier 2) notice is required for a turbidity MCL
violation under Sec. 141.13(b) or a SWTR/IESWTR TT violation due to a
single exceedance of the maximum allowable turbidity limit;
(x) 40 CFR 141.205(c)--To determine the specific multilingual
requirement for a public water system, including defining ``large
proportion of non-English-speaking consumers.''
(b) Requirements for States to adopt 40 CFR part 141, subpart H
Filtration and Disinfection. In addition to the general primacy
requirements enumerated elsewhere in this part, including the
requirement that State provisions are no less stringent than the federal
requirements, an application for approval of a State program revision
that adopts 40 CFR part 141, subpart H Filtration and Disinfection, must
contain the information specified in this paragraph (b), except that
States which require without exception all public water systems
[[Page 653]]
using a surface water source or a ground water source under the direct
influence of surface water to provide filtration need not demonstrate
that the State program has provisions that apply to systems which do not
provide filtration treatment. However, such States must provide the text
of the State statutes or regulations which specifies that all public
water systems using a surface water source or a ground water source
under the direct influence of surface water must provide filtration.
(1) Enforceable requirements. (i) In addition to adopting criteria
no less stringent than those specified in part 141, subpart H of this
chapter, the State's application must include enforceable design and
operating criteria for each filtration treatment technology allowed or a
procedure for establishing design and operating conditions on a system-
by-system basis (e.g., a permit system).
(ii) States must have the appropriate rules or other authority to
assure that PWSs respond in writing to significant deficiencies outlined
in sanitary survey reports required under paragraph (b)(3) of this
section no later than 45 days after receipt of the report, indicating
how and on what schedule the system will address significant
deficiencies noted in the survey.
(iii) States must have the appropriate rules or other authority to
assure that PWSs take necessary steps to address significant
deficiencies identified in sanitary survey reports required under
paragraph (b)(3) of this section, if such deficiencies are within the
control of the PWS and its governing body.
(2) State practices or procedures. (i) A State application for
program revision approval must include a description of how the State
will accomplish the following:
(A) Section 141.70(c) (qualification of operators)--Qualify
operators of systems using a surface water source or a ground water
source under the direct influence of surface water.
(B) Determine which systems using a ground water source are under
the direct influence of surface water by June 29, 1994 for community
water systems and by June 29, 1999 for non-community water systems.
(C) Section 141.72(b)(1) (achieving required Giardia lamblia and
virus removal in filtered systems)--Determine that the combined
treatment process incorporating disinfection treatment and filtration
treatment will achieve the required removal and/or inactivation of
Giardia lamblia and viruses.
(D) Section 141.74(a) (State approval of parties to conduct
analyses)--approve parties to conduct pH, temperature, turbidity, and
residual disinfectant concentration measurements.
(E) Determine appropriate filtration treatment technology for source
waters of various qualities.
(ii) For a State which does not require all public water systems
using a surface water source or ground water source under the direct
influence of surface water to provide filtration treatment, a State
application for program revision approval must include a description of
how the State will accomplish the following:
(A) Section 141.71(b)(2) (watershed control program)--Judge the
adequacy of watershed control programs.
(B) Section 141.71(b)(3) (approval of on-site inspectors)--Approve
on-site inspectors other than State personnel and evaluate the results
of on-site inspections.
(iii) For a State which adopts any of the following discretionary
elements of part 141 of this chapter, the application must describe how
the State will:
(A) Section 141.72 (interim disinfection requirements)--Determine
interim disinfection requirements for unfiltered systems which the State
has determined must filter which will be in effect until filtration is
installed.
(B) Section 141.72 (a)(4)(ii) and (b)(3)(ii) (determination of
adequate disinfection in system without disinfectant residual)--
Determine that a system is unable to measure HPC but is still providing
adequate disinfection in the distribution system, as allowed by Sec.
141.72(a)(4)(ii) for systems which do not provide filtration treatment
and Sec. 141.72(b)(3)(ii) for systems which do provide filtration
treatment.
(C) Section 141.73 (a)(1) and (b)(1) (alternative turbidity limit)--
Determine whether an alternative turbidity limit is appropriate and what
the level should be as allowed by Sec. 141.73(a)(1) for
[[Page 654]]
a system using conventiona1 filtration treatment or direct filtration
and by Sec. 141.73(b)(1) for a system using slow sand filtration.
(D) Section 141.73(d) (alternative filtration technologies)--
Determine that a public water system has demonstrated that an alternate
filtration technology, in combination with disinfection treatment,
achieves adequate removal and/or disinfection of Giardia lamblia and
viruses.
(E) Section 141.74(a)(5) (alternate analytical method for
chlorine)--Approve DPD colorimetric test kits for free and combined
chlorine measurement or approve calibration of automated methods by the
Indigo Method for ozone determination.
(F) Section 141.74 (b)(2) and (c)(1) (approval of continuous
turbidity monitoring)--Approve continuous turbidity monitoring, as
allowed by Sec. 141.74(b)(2) for a public water system which does not
provide filtration treatment and Sec. 141.74(c)(1) for a system which
does provide filtration treatment.
(G) Section 141.74 (b)(6)(i) and (c)(3)(i) (approval of alternate
disinfectant residual concentration sampling plans)--Approve alternate
disinfectant residual concentration sampling plans for systems which
have a combined ground water and surface water or ground water and
ground water under the direct influence of a surface water distribution
system, as allowed by Sec. 141.74(b)(6)(i) for a public water system
which does not provide filtration treatment and Sec. 141.74(c)(3)(i)
for a public water system which does provide filtration treatment.
(H) Section 141.74(c)(1) (reduction of turbidity monitoring)--Decide
whether to allow reduction of turbidity monitoring for systems using
slow sand filtration, an approved alternate filtration technology or
serving 500 people or fewer.
(I) Section 141.75 (a)(2)(ix) and (b)(2)(iv) (reduced reporting)--
Determine whether reduced reporting is appropriate, as allowed by Sec.
141.75(a)(2)(ix) for a public water system which does not provide
filtration treatment and Sec. 141.75(b)(2)(iv) for a public water
system which does provide filtration treatment.
(iv) For a State which does not require all public water systems
using a surface water source or ground water source under the direct
influence of surface water to provide filtration treatment and which
uses any of the following discretionary provisions, the application must
describe how the State will:
(A) Section 141.71(a)(2)(i) (source water turbidity requirements)--
Determine that an exceedance of turbidity limits in source water was
caused by circumstances that were unusual and unpredictable.
(B) Section 141.71(b)(1)(i) (monthly CT compliance requirements)--
Determine whether failure to meet the requirements for monthly CT
compliance in Sec. 141.72(a)(1) was caused by circumstances that were
unusual and unpredictable.
(C) Section 141.71(b)(1)(iii) (residual disinfectant concentration
requirements)--Determine whether failure to meet the requirements for
residual disinfectant concentration entering the distribution system in
Sec. 141.72(a)(3)(i) was caused by circumstances that were unusual and
unpredictable.
(D) Section 141.71(b)(1)(iv) (distribution system disinfectant
residual concentration requirements)--Determine whether failure to meet
the requirements for distribution system residual disinfectant
concentration in Sec. 141.72(a)(4) was related to a deficiency in
treatment.
(E) Section 141.71(b)(4) (system modification to prevent waterborne
disease outbreak)--Determine that a system, after having been identified
as the source of a waterborne disease outbreak, has been modified
sufficiently to prevent another such occurrence.
(F) Section 141.71(b)(5) (total coliform MCL)--Determine whether a
total coliform MCL violation was caused by a deficiency in treatment.
(G) Section 141.72(a)(1) (disinfection requirements)--Determine that
different ozone, chloramine, or chlorine dioxide CT99.9
values or conditions are adequate to achieve required disinfection.
(H) Section 141.72(a)(2)(ii) (shut-off of water to distribution
system)--Determine whether a shut-off of water to the
[[Page 655]]
distribution system when the disinfectant residual concentration
entering the distribution system is less than 0.2 mg/1 will cause an
unreasonable risk to health or interfere with fire protection.
(I) Section 141.74(b)(1) (coliform monitoring)--Determine that
coliform monitoring which otherwise might be required is not feasible
for a system.
(J) Section 141.74(b), table 3.1 (disinfection with chloramines)--
Determine the conditions to be met to insure 99.99 percent removal and/
or inactivation of viruses in systems which use either preformed
chloramines or chloramines for which ammonia is added to the water
before chlorine, as allowed by table 3.1.
(3) Sanitary survey. In addition to the general requirements for
sanitary surveys contained in Sec. 142.10(b)(2), an application must
describe how the State will implement a sanitary survey program that
meets the requirements in paragraphs (b)(3)(i) through (v) of this
section. For the purposes of this paragraph, ``sanitary survey'' means
an onsite review of the water source (identifying sources of
contamination using results of source water assessments where
available), facilities, equipment, operation, maintenance, and
monitoring compliance of a public water system to evaluate the adequacy
of the system, its sources and operations and the distribution of safe
drinking water.
(i) The State must conduct sanitary surveys for all surface water
systems (including groundwater under the influence) that address the
eight sanitary survey components listed in paragraphs (b)(3)(i)(A)
through (H) of this section no less frequently than every three years
for community systems and no less frequently than every five years for
noncommunity systems. The State may allow sanitary surveys conducted
after December 1995 to serve as the first set of required sanitary
surveys if the surveys address the eight sanitary survey components
listed in paragraphs (b)(3)(i)(A) through (H) of this section.
(A) Source.
(B) Treatment.
(C) Distribution system.
(D) Finished water storage.
(E) Pumps, pump facilities, and controls.
(F) Monitoring and reporting and data verification.
(G) System management and operation.
(H) Operator compliance with State requirements.
(ii) For community systems determined by the State to have
outstanding performance based on prior sanitary surveys, subsequent
sanitary surveys may be conducted no less than every five years. In its
primacy application, the State must describe how it will decide whether
a system has outstanding performance and is thus eligible for sanitary
surveys at a reduced frequency.
(iii) Components of a sanitary survey may be completed as part of a
staged or phased state review process within the established frequency.
(iv) When conducting sanitary surveys for systems required to comply
with the disinfection profiling requirements in Sec. 141.172 of this
chapter, the State must also review the disinfection profile as part of
the sanitary survey.
(v) In its primacy application, the State must describe how it will
decide whether a deficiency identified during a sanitary survey is
significant for the purposes of paragraph (b)(1)(ii) of this section.
(c) Total coliform requirements. In addition to meeting the general
primacy requirements of this part, an application for approval of a
State program revision that adopts the requirements of the national
primary drinking water regulation for total coliforms must contain the
following information:
(1) The application must describe the State's plan for determining
whether sample siting plans are acceptable (including periodic reviews),
as required by Sec. 141.21(a)(1).
(2) The national primary drinking water regulation for total
coliforms in part 141 gives States the option to impose lesser
requirements in certain circumstances, which are listed below. If a
State chooses to exercise any of these options, its application for
approval of a program revision must include the information listed below
(the State need only provide the information listed for those options it
has chosen to use).
[[Page 656]]
(i) Section 141.21(a)(2) (Reduced monitoring requirements for
community water systems serving 1,000 or fewer persons)--A description
of how the State will determine whether it is appropriate to reduce the
total coliform monitoring frequency for such systems using the criteria
in Sec. 141.21(a)(2) and how it will determine the revised frequency.
(ii) Section 141.21(a)(3)(i) (Reduced monitoring requirements for
non-community water systems using ground water and serving 1,000 persons
or fewer)--A description of how the State will determine whether it is
appropriate to reduce the total coliform monitoring frequency for such
systems using the criteria in Sec. 141.21(a)(3)(i) and how it will
determine the revised frequency.
(iii) Section 141.21(a)(3)(ii) (Reduced monitoring for non-community
water systems using ground water and serving more than 1,000 persons)--A
description of how the State will determine whether it is appropriate to
reduce the total coliform monitoring frequency for non-community water
systems using only ground water and serving more than 1,000 persons
during any month the system serves 1,000 persons or fewer and how it
will determine the revised frequency.
(iv) Section 141.21(a)(5) (Waiver of time limit for sampling after a
turbidity sampling result exceeds 1 NTU)--A description of how the State
will determine whether it is appropriate to waive the 24-hour time
limit.
(v) Section 141.21(b)(1) (Waiver of time limit for repeat samples)--
A description of how the State will determine whether it is appropriate
to waive the 24-hour time limit and how it will determine what the
revised time limit will be.
(vi) Section 141.21(b)(3) (Alternative repeat monitoring
requirements for systems with a single service connection)--A
description of how the State will determine whether it is appropriate to
allow a system with a single service connection to use an alternative
repeat monitoring scheme, as provided in Sec. 141.21(b)(3), and what
the alternative requirements will be.
(vii) Section 141.21(b)(5) (Waiver of requirement to take five
routine samples the month after a system has a total coliform-positive
sample)--A description of how the State will determine whether it is
appropriate to waive the requirement for certain systems to collect five
routine samples during the next month it serves water to the public,
using the criteria in Sec. 141.21(b)(5).
(viii) Section 141.21(c) (Invalidation of total coliform-positive
samples)--A description of how the State will determine whether it is
appropriate to invalidate a total coliform-positive sample, using the
criteria in Sec. 141.21(c).
(ix) Section 141.21(d) (Sanitary surveys)--A description of the
State's criteria and procedures for approving agents other than State
personnel to conduct sanitary surveys.
(x) Section 141.21(e)(2) (Waiver of fecal coliform or E. coli
testing on a total coliform-positive sample)--A description of how the
State will determine whether it is appropriate to waive fecal coliform
or E. coli testing on a total coliform-positive sample.
(d) Requirements for States to adopt 40 CFR part 141, subpart I--
Control of Lead and Copper. An application for approval of a State
program revision which adopts the requirements specified in 40 CFR part
141, subpart I, must contain (in addition to the general primacy
requirements enumerated elsewhere in this part, including the
requirement that State regulations be at least as stringent as the
federal requirements) a description of how the State will accomplish the
following program requirements:
(1) Section 141.82--State designation of optimal corrosion control.
(i) Sections 141.82(d), 141.82(f), and 141.82(h)--Designating
optimal corrosion control treatment methods, optimal water quality
parameters, and modifications thereto.
(ii) Section 141.82(g)--Designating an alternative approach for
aggregating multiple measurements collected during the same day for a
water quality parameter at a sampling location, if the State elects to
adopt a formula other than the one specified in Sec. 141.82(g)(1) of
this chapter.
(2) Sections 141.83(b)(2) and 141.83(b)(4)--Designating source water
[[Page 657]]
treatment methods, maximum permissible source water levels for lead and
copper and modifications thereto.
(3) Section 141.90(e)--Verifying compliance with lead service line
replacement schedules and completion of all partial lead service line
replacement activities.
(4) Section 141.86(d)(4)(iv)(A)--Designating an alternative period
for sample collection for community water systems subject to reduced
monitoring.
(e) An application for approval of a State program revision which
adopts the requirements specified in Sec. Sec. 141.11, 141.23, 141.24,
141.32, 141.61, and 141.62 for a newly regulated contaminant must
contain the following (in addition to the general primacy requirements
enumerated elsewhere in this part, including the requirement that State
regulations be at least as stringent as the Federal requirements):
(1) If a State chooses to issue waivers from the monitoring
requirements in Sec. Sec. 141.23 and 141.24, the State shall describe
the procedures and criteria which it will use to review waiver
applications and issue waiver determinations.
(i) The procedures for each contaminant or class of contaminants
shall include a description of:
(A) The waiver application requirements;
(B) The State review process for ``use'' waivers and for
``susceptibility'' waivers; and
(C) The State decision criteria, including the factors that will be
considered in deciding to grant or deny waivers. The decision criteria
must include the factors specified in Sec. Sec. 141.24(f)(8) and
141.24(h)(6).
(ii) The State must specify the monitoring data and other
documentation required to demonstrate that the contaminant is eligible
for a ``use'' and/or ``susceptibility'' waiver.
(2) A monitoring plan for the initial monitoring period by which the
State will assure all systems complete the required initial monitoring
within the regulatory deadlines.
Note: States may update their monitoring plan submitted under the
Phase II Rule or simply note in their application that they will use the
same monitoring plan for the Phase V Rule.
(i) The initial monitoring plan must describe how systems will be
scheduled during the initial monitoring period and demonstrate that the
analytical workload on certified laboratories for each of the three
years has been taken into account, to assure that the State's plan will
result in a high degree of monitoring compliance and that as a result
there is a high probability of compliance and will be updated as
necessary.
(ii) The State must demonstrate that the initial monitoring plan is
enforceable under State law.
(f) Consumer Confidence Report requirements. (1) Each State that has
primary enforcement responsibility must adopt the requirements of 40 CFR
part 141, subpart O no later than August 21, 2000. States must submit
revised programs to EPA for approval using the procedures in Sec.
142.12(b) through (d).
(2) Each State that has primary enforcement responsibility must make
reports submitted to the States in compliance with 40 CFR 141.155(c)
available to the public upon request.
(3) Each State that has primary enforcement responsibility must
maintain a copy of the reports for a period of one year and the
certifications obtained pursuant to 40 CFR 141.155(c) for a period of 5
years.
(4) Each State that has primary enforcement responsibility must
report violations of this subpart in accordance with the requirements of
Sec. 142.15(a)(1).
(g) Requirements for States to adopt 40 CFR part 141, Subpart P--
Enhanced Filtration and Disinfection--Systems Serving 10,000 or More
People. In addition to the general primacy requirements enumerated
elsewhere in this part, including the requirement that State provisions
are no less stringent than the Federal requirements, an application for
approval of a State program revision that adopts 40 CFR part 141,
Subpart P Enhanced Filtration and Disinfection--Systems Serving 10,000
or More People, must contain the information specified in this
paragraph:
(1) Enforceable requirements. States must have the appropriate rules
or other authority to require PWSs to conduct a Composite Correction
Program (CCP) and to assure that PWSs
[[Page 658]]
implement any followup recommendations that result as part of the CCP.
The CCP consists of two elements--a Comprehensive Performance Evaluation
(CPE) and Comprehensive Technical Assistance (CTA). A CPE is a thorough
review and analysis of a plant's performance-based capabilities and
associated administrative, operation and maintenance practices. It is
conducted to identify factors that may be adversely impacting a plant's
capability to achieve compliance and emphasizes approaches that can be
implemented without significant capital improvements. A CTA is the
performance improvement phase that is implemented if the CPE results
indicate improved performance potential. During the CTA phase, the
system must identify and systematically address plant-specific factors.
The CTA is a combination of utilizing CPE results as a basis for
followup, implementing process control priority-setting techniques and
maintaining long-term involvement to systematically train staff and
administrators.
(2) State practices or procedures. (i) Section 141.172(a)(3) of this
chapter--How the State will approve a more representative annual data
set than the data set determined under Sec. 141.172 (a)(1) or (2) of
this chapter for the purpose of determining applicability of the
requirements of Sec. 141.172 of this chapter.
(ii) Section 141.172(b)(5) of this chapter--How the State will
approve a method to calculate the logs of inactivation for viruses for a
system that uses either chloramines or ozone for primary disinfection.
(iii) Section 141.172(c) of this chapter--How the State will consult
with PWSs to evaluate modifications to disinfection practice.
(iv) Section 141.173(b) of this chapter--For filtration technologies
other than conventional filtration treatment, direct filtration, slow
sand filtration, or diatomaceous earth filtration, how the State will
determine that a public water system may use a filtration technology if
the PWS demonstrates to the State, using pilot plant studies or other
means, that the alternative filtration technology, in combination with
disinfection treatment that meets the requirements of Sec. 141.172(b)
of this chapter, consistently achieves 99.9 percent removal and/or
inactivation of Giardia lamblia cysts and 99.99 percent removal and/or
inactivation of viruses, and 99 percent removal of Cryptosporidium
oocysts. For a system that makes this demonstration, how the State will
set turbidity performance requirements that the system must meet 95
percent of the time and that the system may not exceed at any time at a
level that consistently achieves 99.9 percent removal and/or
inactivation of Giardia lamblia cysts, 99.99 percent removal and/or
inactivation of viruses, and 99 percent removal of Cryptosporidium
oocysts.
(h) Requirements for States to adopt 40 CFR part 141, subpart L. In
addition to the general primacy requirements elsewhere in this part,
including the requirement that State regulations be at least as
stringent as federal requirements, an application for approval of a
State program revision that adopts 40 CFR part 141, subpart L, must
contain a description of how the State will accomplish the following
program requirements:
(1) Section 141.64(b)(2) of this chapter (interim treatment
requirements). Determine any interim treatment requirements for those
systems electing to install GAC or membrane filtration and granted
additional time to comply with Sec. 141.64 of this chapter.
(2) Section 141.130(c) of this chapter (qualification of operators).
Qualify operators of public water systems subject to 40 CFR part 141,
subpart L. Qualification requirements established for operators of
systems subject to 40 CFR part 141, subpart H--Filtration and
Disinfection may be used in whole or in part to establish operator
qualification requirements for meeting 40 CFR part 141, subpart L
requirements if the State determines that the 40 CFR part 141, subpart H
requirements are appropriate and applicable for meeting subpart L
requirements.
(3) Section 141.131(c)(2) of this chapter (DPD colorimetric test
kits). Approve DPD colorimetric test kits for free and total chlorine
measurements. State approval granted under Sec. 141.74(a)(2) of this
chapter for the use of DPD colorimetric test kits for free
[[Page 659]]
chlorine testing is acceptable for the use of DPD test kits in measuring
free chlorine residuals as required in 40 CFR part 141, subpart L.
(4) Sections 141.131(c)(3) and (d) of this chapter (State approval
of parties to conduct analyses). Approve parties to conduct pH, bromide,
alkalinity, and residual disinfectant concentration measurements. The
State's process for approving parties performing water quality
measurements for systems subject to 40 CFR part 141, subpart H
requirements in paragraph (b)(2)(i)(D) of this section may be used for
approving parties measuring water quality parameters for systems subject
to subpart L requirements, if the State determines the process is
appropriate and applicable.
(5) Section 141.132(a)(2) of this chapter (multiple wells as a
single source). Define the criteria to use to determine if multiple
wells are being drawn from a single aquifer and therefore be considered
a single source for compliance with monitoring requirements.
(6) Approve alternate minimum TOC removal (Step 2) requirements, as
allowed under the provisions of Sec. 141.135(b) of this chapter.
(i) Requirements for States to adopt 40 CFR part 141, Sec. 141.76
Recycle provisions. In addition to the general primacy requirements
enumerated elsewhere in this part, including the requirement that the
State provisions are no less stringent than the federal requirements, an
application for approval of a State program revision that adopts 40 CFR
part 141, Sec. 141.76 Recycle Provisions must contain the information
specified in this paragraph:
(1) State practices or procedures. (i) Section 141.76(d) of this
chapter--States must have the proper rules and authority to use Sanitary
Surveys, comprehensive performance evaluations (CPEs), other
inspections, or other activities to evaluate recycle data maintained by
systems under Sec. 141.76(d) of this chapter and require modifications
to recycle practices.
(ii) [Reserved]
(2) [Reserved]
(j) An application for approval of a State program revision which
adopts the requirements specified in Sec. Sec. 141.11, 141.23, 141.24,
141.32, 141.40, 141.61 and 141.62 for an existing regulated contaminant
must contain the following (in addition to the general primacy
requirements enumerated elsewhere in this part, including the
requirement that State regulations be at least as stringent as the
federal requirements):
(1) If a State chooses to issue waivers from the monitoring
requirements in Sec. Sec. 141.23, 141.24, and 141.40, the State shall
describe the procedures and criteria which it will use to review waiver
applications and issue wavier determinations. The State shall provide
the same information required in paragraph (e)(1)(i) and (ii) of this
section. States may update their existing waiver criteria or use the
requirements submitted under the National Primary Drinking Water
Regulations for the inorganic and organic contaminants (i.e., Phase II/V
rule) in 16(e) of this section. States may simply note in their
application any revisions to existing waiver criteria or note that the
same procedures to issue waivers will be used.
(2) A monitoring plan by which the State will ensure all systems
complete the required monitoring by the regulatory deadlines. States may
update their existing monitoring plan or use the same monitoring plan
submitted under the National Primary Drinking Water Regulations for the
inorganic and organic contaminants (i.e., Phase II/V rule) in 16(e) of
this section. States may simply note in their application any revisions
to an existing monitoring plan or note that the same monitoring plan
will be used. The State must demonstrate that the monitoring plan is
enforceable under State law.
(k) States establish the initial monitoring requirements for new
systems and new sources. States must explain their initial monitoring
schedules and how these monitoring schedules ensure that public water
systems and sources comply with MCL's and monitoring requirements.
States must also specify the time frame in which new systems will
demonstrate compliance with the MCLs.
(l) An application for approval of a State program revision for
radionuclides which adopts the requirements specified in Sec.
141.26(a)(2)(ii)(C) of
[[Page 660]]
this chapter must contain the following (in addition to the general
primacy requirements enumerated in this part, including that State
regulations be at least as stringent as the Federal requirements):
(1) If a State chooses to use grandfathered data in the manner
described in Sec. 141.26(a)(2)(ii)(C) of this chapter, then the State
must describe the procedures and criteria which it will use to make
these determinations (whether distribution system or entry point
sampling points are used).
(i) The decision criteria that the State will use to determine that
data collected in the distribution system are representative of the
drinking water supplied from each entry point to the distribution
system. These determinations must consider:
(A) All previous monitoring data.
(B) The variation in reported activity levels.
(C) Other factors affecting the representativeness of the data (e.g.
geology).
(ii) [Reserved]
(2) A monitoring plan by which the State will assure all systems
complete the required monitoring within the regulatory deadlines. States
may update their existing monitoring plan or use the same monitoring
plan submitted for the requirements in Sec. 142.16(e)(2) under the
national primary drinking water regulations for the inorganic and
organic contaminants (i.e. the phase II/V rules). States may note in
their application any revision to an existing monitoring plan or note
that the same monitoring plan will be used. The State must demonstrate
that the monitoring plan is enforceable under State law.
(m) Requirements for States to adopt 40 CFR part 141, subparts U and
V. In addition to the general primacy requirements elsewhere in this
part, including the requirements that State regulations be at least as
stringent as federal requirements, an application for approval of a
State program revision that adopts 40 CFR part 141, subparts U and V,
must contain a description of how the State will implement a procedure
for addressing modification of wholesale system and consecutive system
monitoring on a case-by-case basis for part 141 subpart V outside the
provisions of Sec. 141.29 of this chapter, if the State elects to use
such an authority. The procedure must ensure that all systems have at
least one compliance monitoring location.
(n) Requirements for States to adopt 40 CFR part 141, subpart W. In
addition to the general primacy requirements elsewhere in this part,
including the requirements that State regulations be at least as
stringent as Federal requirements, an application for approval of a
State program revision that adopts 40 CFR part 141, subpart W, must
contain a description of how the State will accomplish the following
program requirements where allowed in State programs.
(1) Approve an alternative to the E. coli levels that trigger
Cryptosporidium monitoring by filtered systems serving fewer than 10,000
people, as described in Sec. 141.701(a)(5).
(2) Assess significant changes in the watershed and source water as
part of the sanitary survey process and determine appropriate follow-up
action for systems, as described in Sec. 141.711(d) of this chapter.
(3) Approve watershed control programs for the 0.5-log treatment
credit in the microbial toolbox, as described in Sec. 141.716(a) of
this chapter.
(4) Approve protocols for demonstration of performance treatment
credits in the microbial toolbox, as allowed under Sec. 141.718(c) of
this chapter.
(5) Approve protocols for alternative ozone and chlorine dioxide CT
values in the microbial toolbox, as allowed under Sec. 141.720(c) of
this chapter.
(6) Approve an alternative approach to UV reactor validation testing
in the microbial toolbox, as allowed under Sec. 141.720(d)(2)(iii) of
this chapter.
(o) Requirements for States to adopt 40 CFR part 141, subpart S. In
addition to the general primacy requirements specified elsewhere in this
part, including the requirement that State regulations are no less
stringent than the Federal requirements, an application for approval of
a State program revision that adopts 40 CFR part 141, subpart S, must
contain the information specified in this paragraph (o).
[[Page 661]]
(1) Legal authority. The application for primacy must demonstrate
the State has:
(i) The authority contained in statute or regulation to ensure that
ground water systems conduct source water monitoring under Sec.
141.402(a)(2), Sec. 141.402(a)(3) and Sec. 141.402(a)(4)(ii)(A) of
this chapter.
(ii) The authority contained in statute or regulation to ensure that
ground water systems take the appropriate corrective actions including
interim measures, if necessary, needed to address significant
deficiencies.
(iii) The authority contained in statute or regulation to ensure
that ground water systems take the appropriate corrective actions,
including interim measures if necessary, to address any source water
fecal contamination identified during source water monitoring under
Sec. 141.402 of this chapter.
(iv) The authority contained in statute or regulation to ensure that
ground water systems consult with the State regarding corrective
action(s).
(2) State practices or procedures for sanitary surveys. In addition
to the general requirements for sanitary surveys contained in Sec.
142.10(b)(2), a primacy application must describe how the State will
implement a sanitary survey program that meets the requirements of
paragraph (o)(2)(i) of this section. A ``sanitary survey,'' as conducted
by the State, includes but is not limited to, an onsite review of the
water source(s) (identifying sources of contamination by using results
of source water assessments or other relevant information where
available), facilities, equipment, operation, maintenance, and
monitoring compliance of a public water system to evaluate the adequacy
of the system, its sources and operations and the distribution of safe
drinking water.
(i) The State must conduct sanitary surveys that address the eight
sanitary survey components listed in this section no less frequently
than every three years for community water systems, except as provided
in paragraph (o)(2)(iii) of this section, and every five years for non-
community water systems. The State may conduct more frequent sanitary
surveys for any system. The initial sanitary survey for each community
water system must be conducted by December 31, 2012, unless the system
meets the requirements of paragraph (o)(2)(iii) of this section. The
initial sanitary survey for each community water system that meets the
requirements of paragraph (o)(2)(iii) of this section and for each non-
community water system must be conducted by December 31, 2014. The
sanitary survey must include an evaluation of each of the following
elements as applicable:
(A) Source,
(B) Treatment,
(C) Distribution system,
(D) Finished water storage,
(E) Pumps, pump facilities, and controls,
(F) Monitoring, reporting, and data verification,
(G) System management and operation, and
(H) Operator compliance with State requirements.
(ii) The State may use a phased review process to meet the
requirements of (o)(2)(i) of this section if all the applicable elements
of paragraphs (o)(2)(i)(A) through (o)(2)(i)(H) of this section are
evaluated within the required interval.
(iii) The State may conduct sanitary surveys once every five years
for community water systems if the system either provides at least 4-log
treatment of viruses (using inactivation, removal, or a State-approved
combination of 4-log inactivation and removal) before or at the first
customer for all its ground water sources, or if it has an outstanding
performance record, as determined by the State and documented in
previous sanitary surveys and has no history of total coliform MCL or
monitoring violations under Sec. 141.21 of this chapter since the last
sanitary survey. In its primacy application, the State must describe how
it will determine whether a community water system has an outstanding
performance record.
(iv) The State must define and describe in its primacy application
at least one specific significant deficiency in each of the eight
sanitary survey elements in paragraphs (o)(2)(i)(A) through (o)(2)(i)(H)
of this section. Significant deficiencies include, but are not limited
to, defects in design, operation, or maintenance, or a failure or
[[Page 662]]
malfunction of the sources, treatment, storage, or distribution system
that the State determines to be causing, or have potential for causing,
the introduction of contamination into the water delivered to consumers.
(v) As a condition of primacy, the State must provide ground water
systems with written notice describing any significant deficiencies no
later than 30 days after the State identifies the significant
deficiency. The notice may specify corrective actions and deadlines for
completion of corrective actions. The State may provide the written
notice at the time of the sanitary survey.
(3) State practices or procedures for source water microbial
monitoring. The State's primacy application must include a description
of the following:
(i) The criteria the State will use under Sec. Sec.
141.402(a)(2)(i) and 141.402(d)(2) of this chapter for extending the 24-
hour time limit for a system to collect a ground water source sample to
comply with the source water monitoring requirements.
(ii) The criteria the State will use under Sec. Sec.
141.402(a)(5)(i) and 141.402(a)(5)(ii) of this chapter to determine
whether the cause of the total coliform-positive sample taken under
Sec. 141.21(a) of this chapter is directly related to the distribution
system.
(iii) The criteria the State will use for determining whether to
invalidate a fecal indicator-positive ground water source sample under
Sec. 141.402(d)(1)(ii) of this chapter.
(iv) The criteria the State will use to allow source water microbial
monitoring at a location after treatment under Sec. 141.402(e)(1) of
this chapter.
(4) State practices or procedures for treatment technique
requirements. As a condition of primacy, the State must verify that
significant deficiencies or source water fecal contamination have been
addressed. The State must verify within 30 days after the ground water
system has reported to the State that it has completed corrective
action. The State must verify either through written confirmation from
the ground water system or a site visit by the State. Written notice
from the ground water system under Sec. 141.405(a)(2) of this chapter
may serve as this verification. The State's primacy application must
include the following:
(i) The process the State will use to determine that a ground water
system achieves at least a 4-log treatment of viruses (using
inactivation, removal, or a combination of inactivation and removal)
before or at the first customer for a ground water source for systems
that are not subject to the source water monitoring requirements of
Sec. 141.402(a) of this chapter because the ground water system has
informed the State that it provides at least 4-log treatment of viruses.
(ii) The process the State will use to determine the minimum
residual disinfectant concentration the system must provide prior to the
first customer for systems using chemical disinfection.
(iii) The State-approved alternative technologies that ground water
systems may use alone or in combination with other approved technologies
to achieve at least 4-log treatment of viruses (using inactivation,
removal, or a State-approved combination of 4-log inactivation and
removal) before or at the first customer for a ground water source.
(iv) The monitoring and compliance requirements the State will
require for ground water systems treating to at least 4-log treatment of
viruses (using inactivation, removal, or a State-approved combination of
inactivation and removal) before or at the first customer for State-
approved alternative treatment technologies.
(v) The monitoring, compliance and membrane integrity testing
requirements the State will require to demonstrate virus removal for
ground water systems using membrane filtration technologies.
(vi) The criteria, including public health-based considerations and
incorporating on-site investigations and source water monitoring results
the State will use to determine if a ground water system may discontinue
4-log treatment of viruses (using inactivation, removal, or a State-
approved combination of inactivation and removal) before or at the first
customer.
(p) Requirements for States to adopt 40 CFR part 141, Subpart T--
Enhanced Filtration and Disinfection--Systems Serving
[[Page 663]]
Fewer than 10,000 People. In addition to the general primacy
requirements enumerated elsewhere in this part, including the
requirement that State provisions are no less stringent than the Federal
requirements, an application for approval of a State program revision
that adopts 40 CFR part 141, Subpart T Enhanced Filtration and
Disinfection--Systems Serving Fewer than 10,000 People, must contain the
information specified in this paragraph:
(1) Enforceable requirements. States must have rules or other
authority to require systems to participate in a Comprehensive Technical
Assistance (CTA) activity, the performance improvement phase of the
Composite Correction Program (CCP). The State must determine whether a
CTA must be conducted based on results of a CPE which indicate the
potential for improved performance, and a finding by the State that the
system is able to receive and implement technical assistance provided
through the CTA. A CPE is a thorough review and analysis of a system's
performance-based capabilities and associated administrative, operation
and maintenance practices. It is conducted to identify factors that may
be adversely impacting a plant's capability to achieve compliance.
During the CTA phase, the system must identify and systematically
address factors limiting performance. The CTA is a combination of
utilizing CPE results as a basis for follow-up, implementing process
control priority-setting techniques and maintaining long-term
involvement to systematically train staff and administrators.
(2) State practices or procedures. (i) Section 141.530-141.536--How
the State will approve a more representative data set for optional TTHM
and HAA5 monitoring and profiling.
(ii) Section 141.535 of this chapter--How the State will approve a
method to calculate the logs of inactivation for viruses for a system
that uses either chloramines, ozone, or chlorine dioxide for primary
disinfection.
(iii) Section 141.542 of this chapter--How the State will consult
with the system and approve significant changes to disinfection
practices.
(iv) Section 141.552 of this chapter--For filtration technologies
other than conventional filtration treatment, direct filtration, slow
sand filtration, or diatomaceous earth filtration, how the State will
determine that a public water system may use a filtration technology if
the PWS demonstrates to the State, using pilot plant studies or other
means, that the alternative filtration technology, in combination with
disinfection treatment that meets the requirements of Sec. 141.72(b) of
this chapter, consistently achieves 99.9 percent removal and/or
inactivation of Giardia lamblia cysts and 99.99 percent removal and/or
inactivation of viruses, and 99 percent removal of Cryptosporidium
oocysts. For a system that makes this demonstration, how the State will
set turbidity performance requirements that the system must meet 95
percent of the time and that the system may not exceed at any time at a
level that consistently achieves 99.9 percent removal and/or
inactivation of Giardia lamblia cysts, 99.99 percent removal and/or
inactivation of viruses, and 99 percent removal of Cryptosporidium
oocysts.
[54 FR 15188, Apr. 17, 1989]
Editorial Note: For Federal Register citations affecting Sec.
142.16, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 142.17 Review of State programs and procedures for withdrawal
of approved primacy programs.
(a)(1) At least annually the Administrator shall review, with
respect to each State determined to have primary enforcement
responsibility, the compliance of the State with the requirements set
forth in 40 CFR part 142, subpart B, and the approved State primacy
program. At the time of this review, the State shall notify the
Administrator of any State-initiated program changes (i.e., changes
other than those to adopt new or revised EPA regulations), and of any
transfer of all or part of its program from the approved State agency to
any other State agency.
(2) When, on the basis of the Administrator's review or other
available information, the Administrator determines that a State no
longer meets the requirements set forth in 40 CFR part 142, subpart B,
the Administrator shall
[[Page 664]]
initiate proceedings to withdraw primacy approval. Among the factors the
Administrator intends to consider as relevant to this determination are
the following, where appropriate: whether the State has requested and
has been granted, or is awaiting EPA's decision on, an extension under
Sec. 142.12(b)(2) of the deadlines for meeting those requirements; and
whether the State is taking corrective actions that may have been
required by the Administrator. The Administrator shall notify the State
in writing that EPA is initiating primacy withdrawal proceedings and
shall summarize in the notice the information available that indicates
that the State no longer meets such requirements.
(3) The State notified pursuant to paragraph (a)(2) of this section
may, within 30 days of receiving the Administrator's notice, submit to
the Administrator evidence demonstrating that the State continues to
meet the requirements for primary enforcement responsibility.
(4) After reviewing the submission of the State, if any, made
pursuant to paragraph (a)(3) of this section, the Administrator shall
make a final determination either that the State no longer meets the
requirements of 40 CFR part 142, subpart B, or that the State continues
to meet those requirements, and shall notify the State of his or her
determination. Any final determination that the State no longer meets
the requirements of 40 CFR part 142, subpart B, shall not become
effective except as provided in Sec. 142.13.
(b) If a State which has primary enforcement responsibility decides
to relinquish that authority, it may do so by notifying the
Administrator in writing of the State's decision at least 90 days before
the effective date of the decision.
[54 FR 52140, Dec. 20, 1989, as amended at 60 FR 33661, June 28, 1995]
Sec. 142.18 EPA review of State monitoring determinations.
(a) A Regional Administrator may annul a State monitoring
determination for the types of determinations identified in Sec. Sec.
141.23(b), 141.23(c), 141.24(f), 141.24(h), and 141.40(n) in accordance
with the procedures in paragraph (b) of this section.
(b) When information available to a Regional Administrator, such as
the results of an annual review, indicate a State determination fails to
apply the standards of the approved State program, he may propose to
annul the State monitoring determination by sending the State and the
affected PWS a draft Rescission Order. The draft order shall:
(1) Identify the PWS, the State determination, and the provisions at
issue;
(2) Explain why the State determination is not in compliance with
the State program and must be changed; and
(3) Describe the actions and terms of operation the PWS will be
required to implement.
(c) The State and PWS shall have 60 days to comment on the draft
Rescission Order.
(d) The Regional Administrator may not issue a Rescission Order to
impose conditions less stringent than those imposed by the State.
(e) The Regional Administrator shall also provide an opportunity for
comment upon the draft Rescission Order, by
(1) Publishing a notice in a newspaper in general circulation in
communities served by the affected system; and
(2) Providing 30 days for public comment on the draft order.
(f) The State shall demonstrate that the determination is
reasonable, based on its approved State program.
(g) The Regional Administrator shall decide within 120 days after
issuance of the draft Rescission Order to:
(1) Issue the Rescission Order as drafted;
(2) Issue a modified Rescission Order; or
(3) Cancel the Rescission Order.
(h) The Regional Administrator shall set forth the reasons for his
decision, including a responsiveness summary addressing significant
comments from the State, the PWS and the public.
(i) The Regional Administrator shall send a notice of his final
decision to the State, the PWS and all parties who commented upon the
draft Rescission Order.
[[Page 665]]
(j) The Rescission Order shall remain in effect until cancelled by
the Regional Administrator. The Regional Administrator may cancel a
Rescission Order at any time, so long as he notifies those who commented
on the draft order.
(k) The Regional Administrator may not delegate the signature
authority for a final Rescission Order or the cancellation of an order.
(l) Violation of the actions, or terms of operation, required by a
Rescission Order is a violation of the Safe Drinking Water Act.
[56 FR 3595, Jan. 30, 1991]
Sec. 142.19 EPA review of State implementation of national primary
drinking water regulations for lead and copper.
(a) Pursuant to the procedures in this section, the Regional
Administrator may review state determinations establishing corrosion
control or source water treatment requirements for lead or copper and
may issue an order establishing federal treatment requirements for a
public water system pursuant to Sec. 141.82 (d) and (f) and Sec.
141.83(b) (2) and (4) where the Regional Administrator finds that:
(1) A State has failed to issue a treatment determination by the
applicable deadline;
(2) A State has abused its discretion in making corrosion control or
source water treatment determinations in a substantial number of cases
or in cases affecting a substantial population, or
(3) The technical aspects of State's determination would be
indefensible in an expected federal enforcement action taken against a
system.
(b) If the Regional Administrator determines that review of state
determination(s) under this section may be appropriate, he shall request
the State to forward to EPA the state determination and all information
that was considered by the State in making its determination, including
public comments, if any, within 60 days of the Regional Adminstrator's
request.
(c) Proposed review of state determinations:
(1) Where the Regional Administrator finds that review of a state
determination under paragraph (a) of this section is appropriate, he
shall issue a proposed review order which shall:
(i) Identify the public water system(s) affected, the State
determination being reviewed and the provisions of state and/or federal
law at issue;
(ii) Identify the determination that the State failed to carry out
by the applicable deadline, or identify the particular provisions of the
State determination which, in the Regional Administrator's judgment,
fail to carry out properly applicable treatment requirements, and
explain the basis for the Regional Administrator's conclusion;
(iii) Identify the treatment requirements which the Regional
Administrator proposes to apply to the affected system(s), and explain
the basis for the proposed requirements;
(iv) Request public comment on the proposed order and the supporting
record.
(2) The Regional Administrator shall provide notice of the proposed
review order by:
(i) Mailing the proposed order to the affected public water
system(s), the state agency whose order is being reviewed, and any other
parties of interest known to the Regional Administrator; and
(ii) Publishing a copy of the proposed order in a newspaper of
general circulation in the affected communities.
(3) The Regional Administrator shall make available for public
inspection during the comment period the record supporting the proposed
order, which shall include all of the information submitted by the State
to EPA under paragraph (b) of this section, all other studies,
monitoring data and other information considered by the Agency in
developing the proposed order.
(d) Final review order:
(1) Based upon review of all information obtained regarding the
proposed review order, including public comments, the Regional
Administrator shall issue a final review order within 120 days after
issuance of the proposed order which affirms, modifies, or withdraws the
proposed order. The Regional Administrator may extend the time period
for issuing the final order for good cause. If the final order modifies
or withdraws the proposed order, the final
[[Page 666]]
order shall explain the reasons supporting the change.
(2) The record of the final order shall consist of the record
supporting the proposed order, all public comments, all other
information considered by the Regional Administrator in issuing the
final order and a document responding to all significant public comments
submitted on the proposed order. If new points are raised or new
material supplied during the public comment period, the Regional
Administrator may support the responses on those matters by adding new
materials to the record. The record shall be complete when the final
order is issued.
(3) Notice of the final order shall be provided by mailing the final
order to the affected system(s), the State, and all parties who
commented on the proposed order.
(4) Upon issuance of the final order, its terms constitute
requirements of the national primary drinking water regulation for lead
and/or copper until such time as the Regional Administrator issues a new
order (which may include recision of the previous order) pursuant to the
procedures in this section. Such requirements shall supersede any
inconsistent treatment requirements established by the State pursuant to
the national primary drinking water regulations for lead and copper.
(5) The Regional Administrator may not issue a final order to impose
conditions less stringent than those imposed by the State.
(e) The Regional Administrator may not delegate authority to sign
the final order under this section.
(f) Final action of the Regional Administrator under paragraph (d)
of this section shall constitute action of the Administrator for
purposes of 42 U.S.C. Sec. 300j-7(a)(2).
[56 FR 26563, June 7, 1991]
Subpart C_Review of State-Issued Variances and Exemptions
Sec. 142.20 State-issued variances and exemptions under Section 1415(a)
and Section 1416 of the Act.
(a) States with primary enforcement responsibility may issue
variances to public water systems (other than small system variances)
from the requirements of primary drinking water regulations under
conditions and in a manner which are not less stringent than the
requirements under Section 1415(a) of the Act. In States that do not
have primary enforcement responsibility, variances may be granted by the
Administrator pursuant to Subpart E of this part.
(1) A State must document all findings that are required under
Section 1415(a) of the Act.
(2) If a State prescribes a schedule pursuant to section 1415(a) of
the Act requiring compliance with a contaminant level for which the
variance is granted later than five years from the date of issuance of
the variance the State must--
(i) Document its rationale for the extended compliance schedule;
(ii) Discuss the rationale for the extended compliance schedule in
the required public notice and opportunity for public hearing; and
(iii) Provide the shortest practicable time schedule feasible under
the circumstances.
(b) States with primary enforcement responsibility may issue
exemptions from the requirements of primary drinking water regulations
under conditions and in a manner which are not less stringent than the
requirements under Section 1416 of the Act. In States that do not have
primary enforcement responsibility, exemptions may be granted by the
Administrator pursuant to Subpart F of this part.
(1) A State must document all findings that are required under
Section 1416 of the Act:
(i) Before finding that management and restructuring changes cannot
be made, a State must consider the following measures, and the
availability of State Revolving Loan Fund assistance, or any other
Federal or State program, that is reasonably likely to be available
within the period of the exemption to implement these measures:
(A) Consideration of rate increases, accounting changes, the
appointment of a State-certified operator under the State's Operator
Certification program, contractual agreements for joint
[[Page 667]]
operation with one or more public water systems;
(B) Activities consistent with the State's Capacity Development
Strategy to help the public water system acquire and maintain technical,
financial, and managerial capacity to come into compliance with the Act;
and
(C) Ownership changes, physical consolidation with another public
water system, or other feasible and appropriate means of consolidation
which would result in compliance with the Act;
(ii) The State must consider the availability of an alternative
source of water, including the feasibility of partnerships with
neighboring public water systems, as identified by the public water
system or by the State consistent with the Capacity Development
Strategy.
(2) In the case of a public water system serving a population of not
more than 3,300 persons and which needs financial assistance for the
necessary improvements under the initial compliance schedule, an
exemption granted by the State under section 1416(b)(2)(B)(i) or (ii) of
the Act may be renewed for one or more additional 2-year periods, but
not to exceed a total of 6 additional years, only if the State
establishes that the public water system is taking all practicable steps
to meet the requirements of Section 1416(b)(2)(B) of the Act and the
established compliance schedule to achieve full compliance with the
contaminant level or treatment technique for which the exemption was
granted. A State must document its findings in granting an extension
under this paragraph.
[63 FR 43847, Aug. 14, 1998]
Sec. 142.21 State consideration of a variance or exemption request.
A State with primary enforcement responsibility shall act on any
variance or exemption request submitted to it, within 90 days of receipt
of the request.
Sec. 142.22 Review of State variances, exemptions and schedules.
(a) Not later than 18 months after the effective date of the interim
national primary drinking water regulations the Administrator shall
complete a comprehensive review of the variances and exemptions granted
(and schedules prescribed pursuant thereto) by the States with primary
enforcement responsibility during the one-year period beginning on such
effective date. The Administrator shall conduct such subsequent reviews
of exemptions and schedules as he deems necessary to carry out the
purposes of this title, but at least one review shall be completed
within each 3-year period following the completion of the first review
under this paragraph.
(b) Notice of a proposed review shall be published in the Federal
Register. Such notice shall (1) provide information respecting the
location of data and other information respecting the variances and
exemptions to be reviewed (including data and other information
concerning new scientific matters bearing on such variances and
exemptions), and (2) advise of the opportunity to submit comments on the
variances and exemptions reviewed and on the need for continuing them.
Upon completion of any such review, the Administrator shall publish in
the Federal Register the results of his review, together with findings
responsive to any comments submitted in connection with such review.
Sec. 142.23 Notice to State.
(a) If the Administrator finds that a State has, in a substantial
number of instances, abused its discretion in granting variances or
exemptions under section 1415(a) or section 1416(a) of the Act or failed
to prescribe schedules in accordance with section 1415(a) or section
1416(b) of the Act, he shall notify the State of his findings. Such
notice shall:
(1) Identify each public water system for which the finding was
made;
(2) Specify the reasons for the finding; and
(3) As appropriate, propose revocation of specific variances or
exemptions, or propose revised schedules for specific public water
systems.
(b) The Administrator shall also notify the State of a public
hearing to be held on the provisions of the notice required by paragraph
(a) of this section. Such notice shall specify the time and
[[Page 668]]
location for the hearing. If, upon notification of a finding by the
Administrator, the State takes adequate corrective action, the
Administrator shall rescind his notice to the State of a public hearing,
provided that the Administrator is notified of the corrective action
prior to the hearing.
(c) The Administrator shall publish notice of the public hearing in
the Federal Register and in a newspaper or newspapers of general
circulation in the involved State including a summary of the findings
made pursuant to paragraph (a) of this section, a statement of the time
and location for the hearing, and the address and telephone number of an
office at which interested persons may obtain further information
concerning the hearing.
(d) Hearings convened pursuant to paragraphs (b) and (c) of this
section shall be conducted before a hearing officer to be designated by
the Administrator. The hearing shall be conducted by the hearing officer
in an informal, orderly and expeditious manner. The hearing officer
shall have authority to call witnesses, receive oral and written
testimony and take such other action as may be necessary to assure the
fair and efficient conduct of the hearing. Following the conclusion of
the hearing, the hearing officer shall forward the record of the hearing
to the Administrator.
(e) Within 180 days after the date notice is given pursuant to
paragraph (b) of this section, the Administrator shall:
(1) Rescind the finding for which the notice was given and promptly
notify the State of such rescission, or
(2) Promulgate with any modifications as appropriate such revocation
and revised schedules proposed in such notice and promptly notify the
State of such action.
(f) A revocation or revised schedule shall take effect 90 days after
the State is notified under paragraph (e)(2) of this section.
Sec. 142.24 Administrator's rescission.
If, upon notification of a finding by the Administrator under Sec.
142.23, the State takes adequate corrective action before the effective
date of the revocation or revised schedule, the Administrator shall
rescind the application of his finding to that variance, exemption or
schedule.
Subpart D_Federal Enforcement
Sec. 142.30 Failure by State to assure enforcement.
(a) The Administrator shall notify a State and the appropriate
supplier of water whenever he finds during a period in which the State
has primary enforcement responsibility for public water systems that a
public water system within such State is not in compliance with any
primary drinking water regulation contained in part 141 of this chapter
or with any schedule or other requirements imposed pursuant to a
variance or exemption granted under section 1415 or 1416 of the Act:
Provided, That the State will be deemed to have been notified of a
violation referred to in a report submitted by the State.
(b) The Administrator shall provide advice and technical assistance
to such State and public water system as may be appropriate to bring the
system into compliance by the earliest feasible time.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.31 [Reserved]
Sec. 142.32 Petition for public hearing.
(a) If the Administrator makes a finding of noncompliance pursuant
to Sec. 142.30 with respect to a public water system in a State which
has primary enforcement responsibility, the Administrator may, for the
purpose of assisting that State in carrying out such responsibility and
upon the petition of such State or public water system or persons served
by such system, hold, after appropriate notice, public hearings for the
purpose of gathering information as described in Sec. 142.33.
(b) A petition for a public hearing pursuant to paragraph (a) of
this section shall be filed with the Administrator and shall include the
following information:
(1) The name, address and telephone number of the individual or
other entity requesting a hearing.
(2) If the petition is filed by a person other than the State or
public water
[[Page 669]]
system, a statement that the person is served by the system.
(3) A brief statement of information that the requesting person
intends to submit at the requested hearing.
(4) The signature of the individual submitting the petition; or, if
the petition is filed on behalf of a State, public water system or other
entity, the signature of a responsible official of the State or other
entity.
Sec. 142.33 Public hearing.
(a) If the Administrator grants the petition for public hearing, he
shall give appropriate public notice of such hearing. Such notice shall
be by publication in the Federal Register and in a newspaper of general
circulation or by other appropriate communications media covering the
area served by such public water system.
(b) A hearing officer designated by the Administrator shall gather
during the public hearing information from technical or other experts,
Federal, State, or other public officials, representatives of the public
water system, persons served by the system, and other interested persons
on:
(1) The ways in which the system can within the earliest feasible
time be brought into compliance, and
(2) The means for the maximum feasible protection of the public
health during any period in which such system is not in compliance.
(c) On the basis of the hearing and other available information the
Administrator shall issue recommendations which shall be sent to the
State and public water system and shall be made available to the public
and communications media.
Sec. 142.34 Entry and inspection of public water systems.
(a) Any supplier of water or other person subject to a national
primary drinking water regulation shall, at any time, allow the
Administrator, or a designated representative of the Administrator, upon
presenting appropriate credentials and a written notice of inspection,
to enter any establishment, facility or other property of such supplier
or other person to determine whether such supplier or other person has
acted or is acting in compliance with the requirements of the Act or
subchapter D of this chapter. Such inspection may include inspection, at
reasonable times, of records, files, papers, processes, controls and
facilities, or testing of any feature of a public water system,
including its raw water source.
(b) Prior to entry into any establishment, facility or other
property within a State which has primary enforcement responsibility,
the Administrator shall notify, in writing, the State agency charged
with responsibility for safe drinking water of his intention to make
such entry and shall include in his notification a statement of reasons
for such entry. The Administrator shall, upon a showing by the State
agency that such an entry will be detrimental to the administration of
the State's program of primary enforcement responsibility, take such
showing into consideration in determining whether to make such entry.
The Administrator shall in any event offer the State agency the
opportunity of having a representative accompany the Administrator or
his representative on such entry.
(c) No State agency which receives notice under paragraph (b) of
this section may use the information contained in the notice to inform
the person whose property is proposed to be entered of the proposed
entry; if a State so uses such information, notice to the agency under
paragraph (b) of this section is not required for subsequent inspections
of public water systems until such time as the Administrator determines
that the agency has provided him satisfactory assurances that it will no
longer so use information contained in a notice received under paragraph
(b) of this section.
Subpart E_Variances Issued by the Administrator Under Section 1415(a) of
the Act
Sec. 142.40 Requirements for a variance.
(a) The Administrator may grant one or more variances to any public
water system within a State that does not have primary enforcement
responsibility from any requirement respecting a maximum contaminant
level of an
[[Page 670]]
applicable national primary drinking water regulation upon a finding
that:
(1) Because of characteristics of the raw water sources which are
reasonably available to the system, the system cannot meet the
requirements respecting the maximum contaminant levels of such drinking
water regulations despite application of the best technology, treatment
techniques, or other means, which the Administrator finds are generally
available (taking costs into consideration); and
(2) The granting of a variance will not result in an unreasonable
risk to the health of persons served by the system.
(b) The Administrator may grant one or more variances to any public
water system within a State that does not have primary enforcement
responsibility from any requirement of a specified treatment technique
of an applicable national primary drinking water regulation upon a
finding that the public water system applying for the variance has
demonstrated that such treatment technique is not necessary to protect
the health of persons because of the nature of the raw water source of
such system.
Sec. 142.41 Variance request.
A supplier of water may request the granting of a variance pursuant
to this subpart for a public water system within a State that does not
have primary enforcement responsibility by submitting a request for a
variance in writing to the Administrator. Suppliers of water may submit
a joint request for variances when they seek similar variances under
similar circumstances. Any written request for a variance or variances
shall include the following information:
(a) The nature and duration of variance requested.
(b) Relevant analytical results of water quality sampling of the
system, including results of relevant tests conducted pursuant to the
requirements of the national primary drinking water regulations.
(c) For any request made under Sec. 142.40(a):
(1) Explanation in full and evidence of the best available treatment
technology and techniques.
(2) Economic and legal factors relevant to ability to comply.
(3) Analytical results of raw water quality relevant to the variance
request.
(4) A proposed compliance schedule, including the date each step
toward compliance will be achieved. Such schedule shall include as a
minimum the following dates:
(i) Date by which arrangement for alternative raw water source or
improvement of existing raw water source will be completed.
(ii) Date of initiation of the connection of the alternative raw
water source or improvement of existing raw water source.
(iii) Date by which final compliance is to be achieved.
(5) A plan for the provision of safe drinking water in the case of
an excessive rise in the contaminant level for which the variance is
requested.
(6) A plan for additional interim control measures during the
effective period of variance.
(d) For any request made under Sec. 142.40(b), a statement that the
system will perform monitoring and other reasonable requirements
prescribed by the Administrator as a condition to the variance.
(e) Other information, if any, believed to be pertinent by the
applicant.
(f) Such other information as the Administrator may require.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.42 Consideration of a variance request.
(a) The Administrator shall act on any variance request submitted
pursuant to Sec. 142.41 within 90 days of receipt of the request.
(b) In his consideration of whether the public water system is
unable to comply with a contaminant level required by the national
primary drinking water regulations because of the nature of the raw
water source, the Administrator shall consider such factors as the
following:
(1) The availability and effectiveness of treatment methods for the
contaminant for which the variance is requested.
[[Page 671]]
(2) Cost and other economic considerations such as implementing
treatment, improving the quality of the source water or using an
alternate source.
(c) A variance may be issued to a public water system on the
condition that the public water system install 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 Administrator that indicates that alternative
sources of water are not reasonably available to the public water
system.
(d) In his consideration of whether a public water system should be
granted a variance to a required treatment technique because such
treatment is unnecessary to protect the public health, the Administrator
shall consider such factors as the following:
(1) Quality of the water source including water quality data and
pertinent sources of pollution.
(2) Source protection measures employed by the public water system.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987; 63
FR 43847, Aug. 14, 1998]
Sec. 142.43 Disposition of a variance request.
(a) If the Administrator decides to deny the application for a
variance, he shall notify the applicant of his intention to issue a
denial. Such notice shall include a statement of reasons for the
proposed denial, and shall offer the applicant an opportunity to
present, within 30 days of receipt of the notice, additional information
or argument to the Administrator. The Administrator shall make a final
determination on the request within 30 days after receiving any such
additional information or argument. If no additional information or
argument is submitted by the applicant the application shall be denied.
(b) If the Administrator proposes to grant a variance request
submitted pursuant to Sec. 142.41, he shall notify the applicant of his
decision in writing. Such notice shall identify the variance, the
facility covered, and shall specify the period of time for which the
variance will be effective.
(1) For the type of variance specified in Sec. 142.40(a) such
notice shall provide that the variance will be terminated when the
system comes into compliance with the applicable regulation, and may be
terminated upon a finding by the Administrator that the system has
failed to comply with any requirements of a final schedule issued
pursuant to Sec. 142.44.
(2) For the type of variance specified in Sec. 142.40(b) such
notice shall provide that the variance may be terminated at any time
upon a finding that the nature of the raw water source is such that the
specified treatment technique for which the variance was granted is
necessary to protect the health of persons or upon a finding that the
public water system has failed to comply with monitoring and other
requirements prescribed by the Administrator as a condition to the
granting of the variance.
(c) For a variance specified in Sec. 142.40(a)(1) the Administrator
shall propose a schedule for:
(1) Compliance (including increments of progress) by the public
water system with each contaminant level requirement covered by the
variance; and,
(2) Implementation by the public water system of such additional
control measures as the Administrator may require for each contaminant
covered by the variance.
(d) The proposed schedule for compliance shall specify dates by
which steps towards compliance are to be taken, including at the
minimum, where applicable:
(1) Date by which arrangement for an alternative raw water source or
improvement of existing raw water source will be completed.
(2) Date of initiation of the connection for the alternative raw
water source or improvement of the existing raw water source.
(3) Date by which final compliance is to be achieved.
(e) The proposed schedule may, if the public water system has no
access to an alternative raw water source, and can effect or anticipate
no adequate improvement of the existing raw water
[[Page 672]]
source, specify an indefinite time period for compliance until a new and
effective treatment technology is developed at which time a new
compliance schedule shall be prescribed by the Administrator.
(f) The proposed schedule for implementation of additional interim
control measures during the period of variance shall specify interim
treatment techniques, methods and equipment, and dates by which steps
toward meeting the additional interim control measures are to be met.
(g) The schedule shall be prescribed by the Administrator at the
time of granting of the variance, subsequent to provision of opportunity
for hearing pursuant to Sec. 142.44.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.44 Public hearings on variances and schedules.
(a) Before a variance and schedule proposed by the Administrator
pursuant to Sec. 142.43 may take effect, the Administrator shall
provide notice and opportunity for public hearing on the variance and
schedule. A notice given pursuant to the preceding sentence may cover
the granting of more than one variance and a hearing held pursuant to
such notice shall include each of the variances covered by the notice.
(b) Public notice of an opportunity for hearing on a variance and
schedule shall be circulated in a manner designed to inform interested
and potentially interested persons of the proposed variance and
schedule, and shall include at least the following:
(1) Posting of a notice in the principal post office of each
municipality or area served by the public water system, and publishing
of a notice in a newspaper or newspapers of general circulation in the
area served by the public water system; and
(2) Mailing of a notice to the agency of the State in which the
system is located which is responsible for the State's water supply
program, and to other appropriate State or local agencies at the
Administrator's discretion.
(3) Such notice shall include a summary of the proposed variance and
schedule and shall inform interested persons that they may request a
public hearing on the proposed variance and schedule.
(c) Requests for hearing may be submitted by any interested person
other than a Federal agency. Frivolous or insubstantial requests for
hearing may be denied by the Administrator. Requests must be submitted
to the Administrator within 30 days after issuance of the public notices
provided for in paragraph (b) of this section. Such requests shall
include the following information:
(1) The name, address and telephone number of the individual,
organization or other entity requesting a hearing;
(2) A brief statement of the interest of the person making the
request in the proposed variance and schedule, and of information that
the requester intends to submit at such hearing;
(3) The signature of the individual making the request, or, if the
request is made on behalf of an organization or other entity, the
signature of a responsible official of the organization or other entity.
(d) The Administrator shall give notice in the manner set forth in
paragraph (b) of this section of any hearing to be held pursuant to a
request submitted by an interested person or on his own motion. Notice
of the hearing shall also be sent to the persons requesting the hearing,
if any. Notice of the hearing shall include a statement of the purpose
of the hearing, information regarding the time and location for the
hearing, and the address and telephone number of an office at which
interested persons may obtain further information concerning the
hearing. At least one hearing location specified in the public notice
shall be within the involved State. Notice of hearing shall be given not
less than 15 days prior to the time scheduled for the hearing.
(e) A hearing convened pursuant to paragraph (d) of this section
shall be conducted before a hearing officer to be designated by the
Administrator. The hearing shall be conducted by the hearing officer in
an informal, orderly and expeditious manner. The hearing officer shall
have authority to call witnesses, receive oral and written testimony and
take such other action as may be necessary to assure the fair and
[[Page 673]]
efficient conduct of the hearing. Following the conclusion of the
hearing, the hearing officer shall forward the record of the hearing to
the Administrator.
(f) The variance and schedule shall become effective 30 days after
notice of opportunity for hearing is given pursuant to paragraph (b) of
this section if no timely request for hearing is submitted and the
Administrator does not determine to hold a public hearing on his own
motion.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.45 Action after hearing.
Within 30 days after the termination of the public hearing held
pursuant to Sec. 142.44, the Administrator shall, taking into
consideration information obtained during such hearing and relevant
information, confirm, revise or rescind the proposed variance and
schedule.
[52 FR 20675, June 2, 1987]
Sec. 142.46 Alternative treatment techniques.
The Administrator may grant a variance from any treatment technique
requirement of a national primary drinking water regulation to a
supplier of water, whether or not the public water system for which the
variance is requested is located in a State which has primary
enforcement responsibility, upon a showing from any person that an
alternative treatment technique not included in such requirement is at
least as efficient in lowering the level of the contaminant with respect
to which such requirements was prescribed. A variance under this
paragraph shall be conditioned on the use of the alternative treatment
technique which is the basis of the variance.
Subpart F_Exemptions Issued by the Administrator
Sec. 142.50 Requirements for an exemption.
(a) The Administrator may exempt any public water system within a
State that does not have primary enforcement responsibility from any
requirement regarding 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 1452(d) of the Act), the
public water system is unable to comply with such contaminant level or
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, or for a
public water system that was not in operation by that date, no
reasonable alternative source of drinking water is available to such new
public water system;
(3) The granting of the exemption will not result in an unreasonable
risk to health; and
(4) Management or restructuring changes (or both), as provided in
Sec. 142.20(b)(1)(i), cannot reasonably be made that will result in
compliance with the applicable national primary drinking water
regulation or, if compliance cannot be achieved, improve the quality of
the drinking water.
(b) No exemption shall be granted unless the public water system
establishes that the public water system is taking all practicable steps
to meet the standard; and
(1) The public water system cannot meet the standard without capital
improvements which cannot be completed prior to the date established
pursuant to Section 1412(b)(10) of the Act;
(2) In the case of a public water system which needs financial
assistance for the necessary improvements, the public water system has
entered into an agreement to obtain such financial assistance or
assistance pursuant to Section 1452 of the Act, or any other Federal or
State program that is reasonably likely to be available within the
period of the exemption; or
(3) The public water system has entered into an enforceable
agreement to become a part of a regional public water system.
[[Page 674]]
(c) A public water system may not receive an exemption under this
subpart if the public water system was granted a variance under Section
1415(e) of the Act.
[63 FR 43847, Aug. 14, 1998]
Sec. 142.51 Exemption request.
A supplier of water may request the granting of an exemption
pursuant to this subpart for a public water system within a State that
does not have primary enforcement responsibility by submitting a request
for exemption in writing to the Administrator. Suppliers of water may
submit a joint request for exemptions when they seek similar exemptions
under similar circumstances. Any written request for an exemption or
exemptions shall include the following information:
(a) The nature and duration of exemption requested.
(b) Relevant analytical results of water quality sampling of the
system, including results of relevant tests conducted pursuant to the
requirements of the national primary drinking water regulations.
(c) Explanation of the compelling factors such as time or economic
factors which prevent such system from achieving compliance.
(d) Other information, if any, believed by the applicant to be
pertinent to the application.
(e) A proposed compliance schedule, including the date when each
step toward compliance will be achieved.
(f) Such other information as the Administrator may require.
Sec. 142.52 Consideration of an exemption request.
(a) The Administrator shall act on any exemption request submitted
pursuant to Sec. 142.51 within 90 days of receipt of the request.
(b) In his consideration of whether the public water system is
unable to comply due to compelling factors, the Administrator shall
consider such factors as the following:
(1) Construction, installation, or modification of the treatment
equipment or systems.
(2) The time needed to put into operation a new treatment facility
to replace an existing system which is not in compliance.
(3) Economic feasibility of compliance.
Sec. 142.53 Disposition of an exemption request.
(a) If the Administrator decides to deny the application for an
exemption, he shall notify the applicant of his intention to issue a
denial. Such notice shall include a statement of reasons for the
proposed denial, and shall offer the applicant an opportunity to
present, within 30 days of receipt of the notice, additional information
or argument to the Administrator. The Administrator shall make a final
determination on the request within 30 days after receiving any such
additional information or argument. If no additional information or
argument is submitted by the applicant, the application shall be denied.
(b) If the Administrator grants an exemption request submitted
pursuant to Sec. 142.51, he shall notify the applicant of his decision
in writing. Such notice shall identify the facility covered, and shall
specify the termination date of the exemption. Such notice shall provide
that the exemption will be terminated when the system comes into
compliance with the applicable regulation, and may be terminated upon a
finding by the Administrator that the system has failed to comply with
any requirements of a final schedule issued pursuant to Sec. 142.55.
(c) The Administrator shall propose a schedule for:
(1) Compliance (including increments of progress or measures to
develop an alternative source of water supply) by the public water
system with each contaminant level requirement or treatment technique
requirement with respect to which the exemption was granted; and
(2) Implementation by the public water system of such control
measures as the Administrator may require for each contaminant covered
by the exemption.
(d) The schedule shall be prescribed by the Administrator at the
time the exemption is granted, subsequent to
[[Page 675]]
provision of opportunity for hearing pursuant to Sec. 142.54.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987; 63
FR 43848, Aug. 14, 1998]
Sec. 142.54 Public hearings on exemption schedules.
(a) Before a schedule proposed by the Administrator pursuant to
Sec. 142.53 may take effect, the Administrator shall provide notice and
opportunity for public hearing on the schedule. A notice given pursuant
to the preceding sentence may cover the proposal of more than one such
schedule and a hearing held pursuant to such notice shall include each
of the schedules covered by the notice.
(b) Public notice of an opportunity for hearing on an exemption
schedule shall be circulated in a manner designed to inform interested
and potentially interested persons of the proposed schedule, and shall
include at least the following:
(1) Posting of a notice in the principal post office of each
municipality or area served by the public water system, and publishing
of a notice in a newspaper or newspapers of general circulation in the
area served by the public water system.
(2) Mailing of a notice to the agency of the State in which the
system is located which is responsible for the State's water supply
program and to other appropriate State or local agencies at the
Administrator's discretion.
(3) Such notices shall include a summary of the proposed schedule
and shall inform interested persons that they may request a public
hearing on the proposed schedule.
(c) Requests for hearing may be submitted by any interested person
other than a Federal agency. Frivolous or insubstantial requests for
hearing may be denied by the Administrator. Requests must be submitted
to the Administrator within 30 days after issuance of the public notices
provided for in paragraph (b) of this section. Such requests shall
include the following information:
(1) The name, address and telephone number of the individual,
organization or other entity requesting a hearing;
(2) A brief statement of the interest of the person making the
request in the proposed schedule and of information that the requesting
person intends to submit at such hearing; and
(3) The signature of the individual making the request, or, if the
request is made on behalf of an organization or other entity, the
signature of a responsibile official of the organization or other
entity.
(d) The Administrator shall give notice in the manner set forth in
paragraph (b) of this section of any hearing to be held pursuant to a
request submitted by an interested person or on his own motion. Notice
of the hearing shall also be sent to the person requesting the hearing,
if any. Notice of the hearing shall include a statement of the purpose
of the hearing, information regarding the time and location of the
hearing, and the address and telephone number of an office at which
interested persons may obtain further information concerning the
hearing. At least one hearing location specified in the public notice
shall be within the involved State. Notice of the hearing shall be given
not less than 15 days prior to the time scheduled for the hearing.
(e) A hearing convened pursuant to paragraph (d) of this section
shall be conducted before a hearing officer to be designated by the
Administrator. The hearing shall be conducted by the hearing officer in
an informal, orderly and expeditious manner. The hearing officer shall
have authority to call witnesses, receive oral and written testimony and
take such action as may be necessary to assure the fair and efficient
conduct of the hearing. Following the conclusion of the hearing, the
hearing officer shall forward the record of the hearing to the
Administrator.
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]
Sec. 142.55 Final schedule.
(a) Within 30 days after the termination of the public hearing
pursuant to Sec. 142.54, the Administrator shall, taking into
consideration information obtained during such hearing, revise the
proposed schedule as necessary and
[[Page 676]]
prescribe the final schedule for compliance and interim measures for the
public water system granted an exemption under Sec. 142.52.
(b) Such schedule must require compliance with each contaminant
level and treatment technique requirement with respect to which the
exemption was granted as expeditiously as practicable but not later than
3 years after the otherwise applicable compliance date established in
section 1412(b)(10) of the Act.
(c) [Reserved]
[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987; 63
FR 43848, Aug. 14, 1998]
Sec. 142.56 Extension of date for compliance.
In the case of a public water system which serves a population of
not more than 3,300 persons and which needs financial assistance for the
necessary improvements, an exemption granted under Sec. 142.50(b) (1)
or (2) may be renewed for one or more additional 2-year periods, but not
to exceed a total of 6 additional years, if the public water system
establishes that the public water system is taking all practicable steps
to meet the requirements of section 1416(b)(2)(B) of the Act and the
established compliance schedule.
[63 FR 43848, Aug. 14, 1998]
Sec. 142.57 Bottled water, point-of-use, and point-of-entry devices.
(a) A State may require a public water system to use bottled water,
point-of-use devices, or point-of-entry devices as a condition of
granting an exemption from the requirements of Sec. Sec. 141.61 (a) and
(c), and 141.62 of this chapter.
(b) Public water systems using bottled water as a condition of
obtaining an exemption from the requirements of Sec. Sec. 141.61 (a)
and (c) and 141.62(b) must meet the requirements in Sec. 142.62(g).
(c) Public water systems that use point-of-use or point-of-entry
devices as a condition for receiving an exemption must meet the
requirements in Sec. 141.62(h).
[56 FR 3596, Jan. 30, 1991, as amended at 56 FR 30280, July 1, 1991]
Subpart G_Identification of Best Technology, Treatment Techniques or
Other Means Generally Available
Sec. 142.60 Variances from the maximum contaminant level for total
trihalomethanes.
(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act,
hereby identifies the following as the best technology, treatment
techiques or other means generally available for achieving compliance
with the maximum contaminant level for total trihalomethanes (Sec.
141.12(c)):
(1) Use of chloramines as an alternate or supplemental disinfectant
or oxidant.
(2) Use of chlorine dioxide as an alternate or supplemental
disinfectant or oxidant.
(3) Improved existing clarification for THM precursor reduction.
(4) Moving the point of chlorination to reduce TTHM formation and,
where necessary, substituting for the use of chlorine as a pre-oxidant
chloramines, chlorine dioxide or potassium permanganate.
(5) Use of powdered activated carbon for THM precursor or TTHM
reduction seasonally or intermittently at dosages not to exceed 10 mg/L
on an annual average basis.
(b) The Administrator in a state that does not have primary
enforcement responsibility or a state with primary enforcement
responsibility (primacy state) that issues variances shall require a
community water system to install and/or use any treatment method
identified in Sec. 142.60(a) as a condition for granting a variance
unless the Administrator or primacy state determines that such treatment
method identified in Sec. 142.60(a) is not available and effective for
TTHM control for the system. A treatment method shall not be considered
to be ``available and effective'' for an individual system if the
treatment method would not be technically appropriate and technically
feasible for that system or would only result in a marginal reduction in
TTHM for the system. If, upon application by a system for a variance,
the Administrator or primacy state that issues variances determines that
none
[[Page 677]]
of the treatment methods identified in Sec. 142.60(a) is available and
effective for the system, that system shall be entitled to a variance
under the provisions of section 1415(a)(1)(A) of the Act. The
Administrator's or primacy state's determination as to the availability
and effectiveness of such treatment methods shall be based upon studies
by the system and other relevant information. If a system submits
information intending to demonstrate that a treatment method is not
available and effective for TTHM control for that system, the
Administrator or primacy state shall make a finding whether this
information supports a decision that such treatment method is not
available and effective for that system before requiring installation
and/or use of such treatment method.
(c) Pursuant to Sec. 142.43 (c) through (g) or corresponding state
regulations, the Administrator or primacy state that issues variances
shall issue a schedule of compliance that may require the system being
granted the variance to examine the following treatment methods (1) to
determine the probability that any of these methods will significantly
reduce the level of TTHM for that system, and (2) if such probability
exists, to determine whether any of these methods are technically
feasible and economically reasonable, and that the TTHM reductions
obtained will be commensurate with the costs incurred with the
installation and use of such treatment methods for that system:
Introduction of off-line water storage for THM precursor reduction.
Aeration for TTHM reduction, where geographically and
environmentally appropriate.
Introduction of clarification where not currently practiced.
Consideration of alternative sources of raw water.
Use of ozone as an alternate or supplemental disinfectant or
oxidant.
(d) If the Administrator or primacy state that issues variances
determines that a treatment method identified in Sec. 142.60(c) is
technically feasible, economically reasonable and will achieve TTHM
reductions commensurate with the costs incurred with the installation
and/or use of such treatment method for the system, the Administrator or
primacy state shall require the system to install and/or use that
treatment method in connection with a compliance schedule issued under
the provisions of section 1415(a)(1)(A) of the Act. The Administrator's
or primacy state's determination shall be based upon studies by the
system and other relevant information. In no event shall the
Administrator require a system to install and/or use a treatment method
not described in Sec. 142.60 (a) or (c) to obtain or maintain a
variance from the TTHM Rule or in connection with any variance
compliance schedule.
[48 FR 8414, Feb. 28, 1983]
Sec. 142.61 Variances from the maximum contaminant level for fluoride.
(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act,
hereby identifies the following as the best technology, treatment
techniques or other means generally available for achieving compliance
with the Maximum Contaminant Level for fluoride.
(1) Activated alumina absorption, centrally applied
(2) Reverse osmosis, centrally applied
(b) The Administrator in a state that does not have primary
enforcement responsibility or a state with primary enforcement
responsibility (primacy state) that issues variances shall require a
community water system to install and/or use any treatment method
identified in Sec. 142.61(a) as a condition for granting a variance
unless the Administrator or the primacy state determines that such
treatment method identified in Sec. 142.61(a) as a condition for
granting a variance is not available and effective for fluoride control
for the system. A treatment method shall not be considered to be
``available and effective'' for an individual system if the treatment
method would not be technically appropriate and technically feasible for
that system. If, upon application by a system for a variance, the
Administrator or primacy state that issues variances determines that
none of the treatment methods identified in Sec. 142.61(a) are
available and effective for the system, that system shall be entitled to
a variance under the provisions of section
[[Page 678]]
1415(a)(1)(A) of the Act. The Administrator's or primacy state's
determination as to the availability and effectiveness of such treatment
methods shall be based upon studies by the system and other relevant
information. If a system submits information to demonstrate that a
treatment method is not available and effective for fluoride control for
that system, the Administrator or primacy state shall make a finding
whether this information supports a decision that such treatment method
is not available and effective for that system before requiring
installation and/or use of such treatment method.
(c) Pursuant to Sec. 142.43 (c)-(g) or corresponding state
regulations, the Administrator or primacy state that issues variances
shall issue a schedule of compliance that may require the system being
granted the variance to examine the following treatment methods (1) to
determine the probability that any of these methods will significantly
reduce the level of fluoride for that system, and (2) if such
probability exists, to determine whether any of these methods are
technically feasible and economically reasonable, and that the fluoride
reductions obtained will be commensurate with the costs incurred with
the installation and use of such treatment methods for that system:
(1) Modification of lime softening;
(2) Alum coagulation;
(3) Electrodialysis;
(4) Anion exchange resins;
(5) Well field management;
(6) Alternate source;
(7) Regionalization.
(d) If the Administrator or primary state that issues variances
determines that a treatment method identified in Sec. 142.61(c) or
other treatment method is technically feasible, economically reasonable,
and will achieve fluoride reductions commensurate with the costs
incurred with the installation and/or use of such treatment method for
the system, the Administrator or primacy state shall require the system
to install and/or use that treatment method in connection with a
compliance schedule issued under the provisions of section 1415(a)(1)(A)
of the Act. The Administrator's or primacy state's determination shall
be based upon studies by the system and other relevant information.
[51 FR 11411, Apr. 2, 1986]
Sec. 142.62 Variances and exemptions from the maximum contaminant levels for organic and inorganic chemicals.
(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act
hereby identifies the technologies listed in paragraphs (a)(1) through
(a)(54) of this section as the best technology, treatment techniques, or
other means available for achieving compliance with the maximum
contaminant levels for organic chemicals listed in Sec. 141.61 (a) and
(c):
----------------------------------------------------------------------------------------------------------------
Best available technologies
Contaminant ---------------------------------------------------------------------------
PTA \1\ GAC \2\ OX \3\
----------------------------------------------------------------------------------------------------------------
(1) Benzene......................... X X .......................
(2) Carbon tetrachloride............ X X .......................
(3) 1,2-Dichloroethane.............. X X .......................
(4) Trichloroethylene............... X X .......................
(5) para-Dichlorobenzene............ X X .......................
(6) 1,1-Dichloroethylene............ X X .......................
(7) 1,1,1-Trichloroethane........... X X .......................
(8) Vinyl chloride.................. X ....................... .......................
(9) cis-1,2-Dichloroethylene........ X X .......................
(10) 1,2-Dichloropropane............ X X .......................
(11) Ethylbenzene................... X X .......................
(12) Monochlorobenzene.............. X X .......................
(13) o-Dichlorobenzene.............. X X .......................
(14) Styrene........................ X X .......................
(15) Tetrachloroethylene............ X X .......................
(16) Toluene........................ X X .......................
(17) trans-1,2-Dichloroethylene..... X X .......................
(18) Xylense (total)................ X X .......................
(19) Alachlor....................... ........................ X .......................
(20) Aldicarb....................... ........................ X .......................
(21) Aldicarb sulfoxide............. ........................ X .......................
(22) Aldicarb sulfone............... ........................ X .......................
[[Page 679]]
(23) Atrazine....................... ........................ X .......................
(24) Carbofuran..................... ........................ X .......................
(25) Chlordane...................... ........................ X .......................
(26) Dibromochloropropane........... X X .......................
(27) 2,4-D.......................... ........................ X .......................
(28) Ethylene dibromide............. X X .......................
(29) Heptachlor..................... ........................ X .......................
(30) Heptachlor epoxide............. ........................ X .......................
(31) Lindane........................ ........................ X .......................
(32) Methoxychlor................... ........................ X .......................
(33) PCBs........................... ........................ X .......................
(34) Pentachlorophenol.............. ........................ X .......................
(35) Toxaphene...................... ........................ X .......................
(36) 2,4,5-TP....................... ........................ X .......................
(37) Benzo[a]pyrene................. ........................ X .......................
(38) Dalapon........................ ........................ X .......................
(39) Dichloromethane................ X ....................... .......................
(40) Di(2-ethylhexyl)adipate........ X X .......................
(41) Di(2-ethylhexyl)phthalate...... ........................ X .......................
(42) Dinoseb........................ ........................ X .......................
(43) Diquat......................... ........................ X .......................
(44) Endothall...................... ........................ X .......................
(45) Endrin......................... ........................ X .......................
(46) Glyphosate..................... ........................ ....................... X
(47) Hexachlorobenzene.............. ........................ X .......................
(48) Hexachlorocyclopentadiene...... X X .......................
(49) Oxamyl (Vydate)................ ........................ X .......................
(50) Picloram....................... ........................ X .......................
(51) Simazine....................... ........................ X .......................
(52) 1,2,4-Trichlorobenzene......... X X .......................
(53) 1,1,2-Trichloroethane.......... X X .......................
(54) 2,3,7,8-TCDD (Dioxin).......... ........................ X .......................
----------------------------------------------------------------------------------------------------------------
\1\ Packed Tower Aeration
\2\ Granular Activated Carbon
\3\ Oxidation (Chlorination or Ozonation)
(b) The Administrator, pursuant to section 1415(a)(1)(A) of the Act,
hereby identifies the following as the best technology, treatment
techniques, or other means available for achieving compliance with the
maximum contaminant levels for the inorganic chemicals listed in Sec.
141.62:
BAT for Inorganic Compounds Listed in Sec. 141.62(b)
------------------------------------------------------------------------
Chemical name BAT(s)
------------------------------------------------------------------------
Antimony................................................ 2,7
Arsenic \4\............................................. \5\ 1, 2, 5,
6, 7, 9, 12
Asbestos................................................ 2,3,8
Barium.................................................. 5,6,7,9
Beryllium............................................... 1,2,5,6,7
Cadmium................................................. 2,5,6,7
Chromium................................................ 2,5,6 \2\,7
Cyanide................................................. 5,7,10
Mercury................................................. 2 \1\,4,6
\1\,7 \1\
Nickel.................................................. 5,6,7
Nitrite................................................. 5,7,9
Nitrate................................................. 5,7
Selenium................................................ 1,2 \3\,6,7,9
Thallium................................................ 1,5
------------------------------------------------------------------------
\1\ BAT only if influent Hg concentrations <=10[micro]g/1.
\2\ BAT for Chromium III only.
\3\ BAT for Selenium IV only.
\4\ BATs for Arsenic V. Pre-oxidation may be required to convert Arsenic
III to Arsenic V.
\5\ To obtain high removals, iron to arsenic ratio must be at least
20:1.
Key to BATS in Table
1=Activated Alumina
2=Coagulation/Filtration (not BAT for systems <500 service connections)
3=Direct and Diatomite Filtration
4=Granular Activated Carbon
5=Ion Exchange
6=Lime Softening (not BAT for systems <500 service connections)
7=Reverse Osmosis
8=Corrosion Control
9=Electrodialysis
10=Chlorine
11=Ultraviolet
12=Oxidation/Filtration
(c) A State shall require community water systems and non-transient,
non-community water systems to install and/or use any treatment method
identified in Sec. 142.62 (a) and (b) as a condition for granting a
variance except as provided in paragraph (d) of this section. If, after
the system's installation
[[Page 680]]
of the treatment method, the system cannot meet the MCL, that system
shall be eligible for a variance under the provisions of section
1415(a)(1)(A) of the Act.
(d) If a system can demonstrate through comprehensive engineering
assessments, which may include pilot plant studies, that the treament
methods identified in Sec. 142.62 (a) and (b) would only achieve a de
minimis reduction in contaminants, the State may issue a schedule of
compliance that requires the system being granted the variance to
examine other treatment methods as a condition of obtaining the
variance.
(e) If the State determines that a treatment method identified in
paragraph (d) of this section is technically feasible, the Administrator
or primacy State may require the system to install and/or use that
treatment method in connection with a compliance schedule issued under
the provisions of section 1415(a)(1)(A) of the Act. The State's
determination shall be based upon studies by the system and other
relevant information.
(f) The State may require a public water system to use bottled
water, point-of-use devices, point-of-entry devices or other means as a
condition of granting a variance or an exemption from the requirements
of Sec. Sec. 141.61 (a) and (c) and 141.62, to avoid an unreasonable
risk to health. The State may require a public water system to use
bottled water and point-of-use devices or other means, but not point-of-
entry devices, as a condition for granting an exemption from corrosion
control treatment requirements for lead and copper in Sec. Sec. 141.81
and 141.82 to avoid an unreasonable risk to health. The State may
require a public water system to use point-of-entry devices as a
condition for granting an exemption from the source water and lead
service line replacement requirements for lead and copper under
Sec. Sec. 141.83 or 141.84 to avoid an unreasonable risk to health.
(g) Public water systems that use bottled water as a condition for
receiving a variance or an exemption from the requirements of Sec. Sec.
141.61 (a) and (c) and 141.62, or an exemption from the requirements of
Sec. Sec. 141.81-141.84 must meet the requirements specified in either
paragraph (g)(1) or (g)(2) and paragraph (g)(3) of this section:
(1) The Administrator or primacy State must require and approve a
monitoring program for bottled water. The public water system must
develop and put in place a monitoring program that provides reasonable
assurances that the bottled water meets all MCLs. The public water
system must monitor a representative sample of the bottled water for all
contaminants regulated under Sec. Sec. 141.61 (a) and (c) and 141.62
during the first three-month period that it supplies the bottled water
to the public, and annually thereafter. Results of the monitoring
program shall be provided to the State annually.
(2) The public water system must receive a certification from the
bottled water company that the bottled water supplied has been taken
from an ``approved source'' as defined in 21 CFR 129.3(a); the bottled
water company has conducted monitoring in accordance with 21 CFR
129.80(g) (1) through (3); and the bottled water does not exceed any
MCLs or quality limits as set out in 21 CFR 165.110, part 110, and part
129. The public water system shall provide the certification to the
State the first quarter after it supplies bottled water and annually
thereafter. At the State's option a public water system may satisfy the
requirements of this subsection if an approved monitoring program is
already in place in another State.
(3) The public water system is fully responsible for the provision
of sufficient quantities of bottled water to every person supplied by
the public water system via door-to-door bottled water delivery.
(h) Public water systems that use point-of-use or point-of-entry
devices as a condition for obtaining a variance or an exemption from
NPDWRs must meet the following requirements:
(1) It is the responsibility of the public water system to operate
and maintain the point-of-use and/or point-of-entry treatment system.
(2) Before point-of-use or point-of-entry devices are installed, the
public water system must obtain the approval of a monitoring plan which
ensures
[[Page 681]]
that the devices provide health protection equivalent to that provided
by central water treatment.
(3) The public water system must apply effective technology under a
State-approved plan. The microbiological safety of the water must be
maintained at all times.
(4) The State must require adequate certification of performance,
field testing, and, if not included in the certification process, a
rigorous engineering design review of the point-of-use and/or point-of-
entry devices.
(5) The design and application of the point-of-use and/or point-of-
entry devices must consider the potential for increasing concentrations
of heterotrophic bacteria in water treated with activated carbon. It may
be necessary to use frequent backwashing, post-contactor disinfection,
and Heterotrophic Plate Count monitoring to ensure that the
microbiological safety of the water is not compromised.
(6) The State must be assured that buildings connected to the system
have sufficient point-of-use or point-of-entry devices that are properly
installed, maintained, and monitored such that all consumers will be
protected.
(7) In requiring the use of a point-of-entry device as a condition
for granting an exemption from the treatment requirements for lead and
copper under Sec. Sec. 141.83 or 141.84, the State must be assured that
use of the device will not cause increased corrosion of lead and copper
bearing materials located between the device and the tap that could
increase contaminant levels at the tap.
[56 FR 3596, Jan. 30, 1991, as amended at 56 FR 26563, June 7, 1991; 57
FR 31848, July 17, 1992; 59 FR 33864, June 30, 1994; 59 FR 34325, July
1, 1994; 66FR 7066, Jan. 22, 2001; 69 FR 38857, June 29, 2004]
Sec. 142.63 Variances and exemptions from the maximum contaminant
level for total coliforms.
(a) No variances or exemptions from the maximum contaminant level in
Sec. 141.63 of this chapter are permitted.
(b) EPA has stayed the effective date of this section relating to
the total coliform MCL of Sec. 141.63(a) of this chapter for systems
that demonstrate to the State that the violation of the total coliform
MCL is due to a persistent growth of total coliforms in the distribution
system rather than fecal or pathogenic contamination, a treatment lapse
or deficiency, or a problem in the operation or maintenance of the
distribution system.
[54 FR 27568, June 29, 1989, as amended at 56 FR 1557, Jan. 15, 1991]
Sec. 142.64 Variances and exemptions from the requirements of part 141,
subpart H--Filtration and Disinfection.
(a) No variances from the requirements in part 141, subpart H are
permitted.
(b) No exemptions from the requirements in Sec. 141.72 (a)(3) and
(b)(2) to provide disinfection are permitted.
[54 FR 27540, June 29, 1989]
Sec. 142.65 Variances and exemptions from the maximum contaminant levels
for radionuclides.
(a)(1) Variances and exemptions from the maximum contaminant levels
for combined radium-226 and radium-228, uranium, gross alpha particle
activity (excluding Radon and Uranium), and beta particle and photon
radioactivity.
(i) The Administrator, pursuant to section 1415(a)(1)(A) of the Act,
hereby identifies the following as the best available technology,
treatment techniques, or other means available for achieving compliance
with the maximum contaminant levels for the radionuclides listed in
Sec. 141.66(b), (c), (d), and (e) of this chapter, for the purposes of
issuing variances and exemptions, as shown in Table A to this paragraph.
Table A--BAT for Radionuclides Listed in Sec. 141.66
------------------------------------------------------------------------
Contaminant BAT
------------------------------------------------------------------------
Combined radium-226 and radium-228........ Ion exchange, reverse
osmosis, lime softening.
Uranium................................... Ion exchange, reverse
osmosis, lime softening,
coagulation/filtration.
Gross alpha particle activity (excluding Reverse osmosis.
radon and uranium).
Beta particle and photon radioactivity.... Ion exchange, reverse
osmosis.
------------------------------------------------------------------------
(ii) In addition, the Administrator hereby identifies the following
as the best available technology, treatment techniques, or other means
available
[[Page 682]]
for achieving compliance with the maximum contaminant levels for the
radionuclides listed in Sec. 141.66(b), (c), (d), and (e) of this
chapter, for the purposes of issuing variances and exemptions to small
drinking water systems, defined here as those serving 10,000 persons or
fewer, as shown in Table C to this paragraph.
Table B--List of Small Systems Compliance Technologies for Radionuclides and Limitations to Use
----------------------------------------------------------------------------------------------------------------
Limitations
Unit technologies (see Operator skill level Raw water quality range &
footnotes) required \1\ considerations \1\
----------------------------------------------------------------------------------------------------------------
1. Ion exchange (IE).................... (\a\) Intermediate............... All ground waters.
2. Point of use (POU \2\ ) IE........... (\b\) Basic...................... All ground waters.
3. Reverse osmosis (RO)................. (\c\) Advanced................... Surface waters usually
require pre-filtration.
4. POU \2\ RO........................... (\b\) Basic...................... Surface waters usually
require pre-filtration.
5. Lime softening....................... (\d\) Advanced................... All waters.
6. Green sand filtration................ (\e\) Basic.
7. Co-precipitation with barium sulfate. (\f\) Intermediate to Advanced... Ground waters with suitable
water quality.
8. Electrodialysis/electrodialysis ............ Basic to Intermediate...... All ground waters.
reversal.
9. Pre-formed hydrous manganese oxide (\g\) Intermediate............... All ground waters.
filtration.
10. Activated alumina................... (\a\), (\h\) Advanced................... All ground waters;
competing anion
concentrations may affect
regeneration frequency.
11. Enhanced coagulation/filtration..... (\i\) Advanced................... Can treat a wide range of
water qualities.
----------------------------------------------------------------------------------------------------------------
\1\ National Research Council (NRC). Safe Water from Every Tap: Improving Water Service to Small Communities.
National Academy Press. Washington, D.C. 1997.
\2\ A POU, or ``point-of-use'' technology is a treatment device installed at a single tap used for the purpose
of reducing contaminants in drinking water at that one tap. POU devices are typically installed at the kitchen
tap. See the April 21, 2000 NODA for more details.
Limitations Footnotes: Technologies for Radionuclides:
\a\ The regeneration solution contains high concentrations of the contaminant ions. Disposal options should be
carefully considered before choosing this technology.
\b\ When POU devices are used for compliance, programs for long-term operation, maintenance, and monitoring must
be provided by water utility to ensure proper performance.
\c\ Reject water disposal options should be carefully considered before choosing this technology. See other RO
limitations described in the SWTR compliance technologies table.
\d\ The combination of variable source water quality and the complexity of the water chemistry involved may make
this technology too complex for small surface water systems.
\e\ Removal efficiencies can vary depending on water quality.
\f\ This technology may be very limited in application to small systems. Since the process requires static
mixing, detention basins, and filtration, it is most applicable to systems with sufficiently high sulfate
levels that already have a suitable filtration treatment train in place.
\g\ This technology is most applicable to small systems that already have filtration in place.
\h\ Handling of chemicals required during regeneration and pH adjustment may be too difficult for small systems
without an adequately trained operator.
\i\ Assumes modification to a coagulation/filtration process already in place.
Table C--BAT for Small Community Water Systems for the Radionuclides Listed in Sec. 141.66
----------------------------------------------------------------------------------------------------------------
Compliance technologies \1\ for system size categories (population
served)
Contaminant --------------------------------------------------------------------------
25-500 501-3,300 3,300-10,000
----------------------------------------------------------------------------------------------------------------
Combined radium-226 and radium-228... 1, 2, 3, 4, 5, 6, 7, 8, 1, 2, 3, 4, 5, 6, 7, 8, 1, 2, 3, 4, 5, 6, 7, 8,
9. 9. 9.
Gross alpha particle activity........ 3, 4................... 3, 4................... 3, 4.
Beta particle activity and photon 1, 2, 3, 4............. 1, 2, 3, 4............. 1, 2, 3, 4.
activity.
Uranium.............................. 1, 2, 4, 10, 11........ 1, 2, 3, 4, 5, 10, 11.. 1, 2, 3, 4, 5, 10, 11.
----------------------------------------------------------------------------------------------------------------
\1\ Note: Numbers correspond to those technologies found listed in the table B to this paragraph.
(2) A State shall require community water systems to install and/or
use any treatment technology identified in Table A to this section, or
in the case of small water systems (those serving 10,000 persons or
fewer), Table B and Table C of this section, as a condition for granting
a variance except as provided in paragraph (a)(3) of this section. If,
after the system's installation
[[Page 683]]
of the treatment technology, the system cannot meet the MCL, that system
shall be eligible for a variance under the provisions of section
1415(a)(1)(A) of the Act.
(3) If a community water system can demonstrate through
comprehensive engineering assessments, which may include pilot plant
studies, that the treatment technologies identified in this section
would only achieve a de minimus reduction in the contaminant level, the
State may issue a schedule of compliance that requires the system being
granted the variance to examine other treatment technologies as a
condition of obtaining the variance.
(4) If the State determines that a treatment technology identified
under paragraph (a)(3) of this section is technically feasible, the
Administrator or primacy State may require the system to install and/or
use that treatment technology in connection with a compliance schedule
issued under the provisions of section 1415(a)(1)(A) of the Act. The
State's determination shall be based upon studies by the system and
other relevant information.
(5) The State may require a community water system to use bottled
water, point-of-use devices, point-of-entry devices or other means as a
condition of granting a variance or an exemption from the requirements
of Sec. 141.66 of this chapter, to avoid an unreasonable risk to
health.
(6) Community water systems that use bottled water as a condition
for receiving a variance or an exemption from the requirements of Sec.
141.66 of this chapter must meet the requirements specified in either
Sec. 142.62(g)(1) or Sec. 142.62(g)(2) and (g)(3).
(7) Community water systems that use point-of-use or point-of-entry
devices as a condition for obtaining a variance or an exemption from the
radionuclides NPDWRs must meet the conditions in Sec. 142.62(h)(1)
through (h)(6).
(b) [Reserved]
[65 FR 76751, Dec. 7, 2000]
Subpart H_Indian Tribes
Source: 53 FR 37411, Sept. 26, 1988, unless otherwise noted.
Sec. 142.72 Requirements for Tribal eligibility.
The Administrator is authorized to treat an Indian tribe as eligible
to apply for primary enforcement for the Public Water System Program and
the authority to waive the mailing requirements of Sec. 141.155(a) if
it meets the following criteria:
(a) The Indian Tribe is recognized by the Secretary of the Interior.
(b) The Indian Tribe has a tribal governing body which is currently
``carrying out substantial governmental duties and powers'' over a
defined area, (i.e., is currently performing governmental functions to
promote the health, safety, and welfare of the affected population
within a defined geographic area).
(c) The Indian Tribe demonstrates that the functions to be performed
in regulating the public water systems that the applicant intends to
regulate are within the area of the Indian Tribal government's
jurisdiction.
(d) The Indian Tribe is reasonably expected to be capable, in the
Administrator's judgment, of administering (in a manner consistent with
the terms and purposes of the Act and all applicable regulations) an
effective Public Water System program.
[53 FR 37411, Sept. 26, 1988, as amended at 59 FR 64344, Dec. 14, 1994;
63 FR 44535, Aug. 19, 1998]
Sec. 142.76 Request by an Indian Tribe for a determination of eligibility.
An Indian Tribe may apply to the Administrator for a determination
that it meets the criteria of section 1451 of the Act. The application
shall be concise and describe how the Indian Tribe will meet each of the
requirements of Sec. 142.72. The application shall consist of the
following information:
(a) A statement that the Tribe is recognized by the Secretary of the
Interior.
(b) A descriptive statement demonstrating that the Tribal governing
body is currently carrying out substantial governmental duties and
powers over a defined area. The statement should:
(1) Describe the form of the Tribal government;
[[Page 684]]
(2) Describe the types of governmental functions currently performed
by the Tribal governing body such as, but not limited to, the exercise
of police powers affecting (or relating to) the health, safety, and
welfare of the affected population; taxation; and the exercise of the
power of eminent domain; and
(3) Identify the sources of the Tribal government's authority to
carry out the governmental functions currently being performed.
(c) A map or legal description of the area over which the Indian
Tribe asserts jurisdiction; a statement by the Tribal Attorney General
(or equivalent official) which describes the basis for the Tribe's
jurisdictional assertion (including the nature or subject matter of the
asserted jurisdiction); a copy of those documents such as Tribal
constitutions, by-laws, charters, executive orders, codes, ordinances,
and/or resolutions which the Tribe believes are relevant to its
assertions regarding jurisdiction; and a description of the locations of
the public water systems the Tribe proposes to regulate.
(d) A narrative statement describing the capability of the Indian
Tribe to administer an effective Public Water System program. The
narrative statement should include:
(1) A description of the Indian Tribe's previous management
experience which may include, the administration of programs and
services authorized by the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.), the Indian Mineral Development
Act (25 U.S.C. 2101 et seq.), or the Indian Sanitation Facilities
Construction Activity Act (42 U.S.C. 2004a).
(2) A list of existing environmental or public health programs
administered by the Tribal governing body and a copy of related Tribal
laws, regulations and policies.
(3) A description of the Indian Tribe's accounting and procurement
systems.
(4) A description of the entity (or entities) which exercise the
executive, legislative, and judicial functions of the Tribal government.
(5) A description of the existing, or proposed, agency of the Indian
Tribe which will assume primary enforcement responsibility, including a
description of the relationship between owners/operators of the public
water systems and the agency.
(6) A description of the technical and administrative capabilities
of the staff to administer and manage an effective Public Water System
Program or a plan which proposes how the Tribe will acquire additional
administrative and/or technical expertise. The plan must address how the
Tribe will obtain the funds to acquire the additional administrative and
technical expertise.
(e) The Administrator may, in his discretion, request further
documentation necessary to support a Tribe's eligibility.
(f) If the Administrator has previously determined that a Tribe has
met the prerequisites that make it eligible to assume a role similar to
that of a state as provided by statute under the Safe Drinking Water
Act, the Clean Water Act, or the Clean Air Act, then that Tribe need
provide only that information unique to the Public Water System program
(paragraphs (c), (d)(5) and (6) of this section).
[53 FR 37411, Sept. 26, 1988, as amended at 59 FR 64344, Dec. 14, 1994]
Sec. 142.78 Procedure for processing an Indian Tribe's application.
(a) The Administrator shall process a completed application of an
Indian Tribe in a timely manner. He shall promptly notify the Indian
Tribe of receipt of the application.
(b) A tribe that meets the requirements of Sec. 141.72 of this
chapter is eligible to apply for development grants and primacy
enforcement responsibility for a Public Water System Program and
associated funding under section 1443(a) of the Act and for primary
enforcement responsibility for public water systems under section 1413
of the Act and for the authority to waive the mailing requirement of
Sec. 141.155(a) of this chapter.
[53 FR 37411 Sept. 26, 1988, as amended at 59 FR 64345, Dec. 14, 1994;
63 FR 71376, Dec. 28, 1998]
[[Page 685]]
Subpart I_Administrator's Review of State Decisions that Implement
Criteria Under Which Filtration Is Required
Source: 54 FR 27540, June 29, 1989, unless otherwise noted.
Sec. 142.80 Review procedures.
(a) The Administrator may initiate a comprehensive review of the
decisions made by States with primary enforcement responsibility to
determine, in accordance with Sec. 141.71 of this chapter, if public
water systems using surface water sources must provide filtration
treatment. The Administrator shall complete this review within one year
of its initiation and shall schedule subsequent reviews as (s)he deems
necessary.
(b) EPA shall publish notice of a proposed review in the Federal
Register. Such notice must:
(1) Provide information regarding the location of data and other
information pertaining to the review to be conducted and other
information including new scientific matter bearing on the application
of the criteria for avoiding filtration; and
(2) Advise the public of the opportunity to submit comments.
(c) Upon completion of any such review, the Administrator shall
notify each State affected by the results of the review and shall make
the results available to the public.
Sec. 142.81 Notice to the State.
(a) If the Administrator finds through periodic review or other
available information that a State (1) has abused its discretion in
applying the criteria for avoiding filtration under Sec. 141.71 of this
chapter in determining that a system does not have to provide filtration
treatment, or (2) has failed to prescribe compliance schedules for those
systems which must provide filtration in accordance with section
1412(b)(7)(C)(ii) of the Act, (s)he shall notify the State of these
findings. Such notice shall:
(1) Identify each public water system for which the Administrator
finds the State has abused its discretion;
(2) Specify the reasons for the finding;
(3) As appropriate, propose that the criteria of Sec. 141.71 of
this chapter be applied properly to determine the need for a public
water system to provide filtration treatment or propose a revised
schedule for compliance by the public water system with the filtration
treatment requirements;
(b) The Administrator shall also notify the State that a public
hearing is to be held on the provisions of the notice required by
paragraph (a) of this section. Such notice shall specify the time and
location of the hearing. If, upon notification of a finding by the
Administrator that the State has abused its discretion under Sec.
141.71 of this chapter, the State takes corrective action satisfactory
to the Administrator, the Administrator may rescind the notice to the
State of a public hearing.
(c) The Administrator shall publish notice of the public hearing in
the Federal Register and in a newspaper of general circulation in the
involved State, including a summary of the findings made pursuant to
paragraph (a) of this section, a statement of the time and location for
the hearing, and the address and telephone number of an office at which
interested persons may obtain further information concerning the
hearing.
(d) Hearings convened pursuant to paragraphs (b) and (c) of this
section shall be conducted before a hearing officer to be designated by
the Administrator. The hearing shall be conducted by the hearing officer
in an informal, orderly, and expeditious manner. The hearing officer
shall have the authority to call witnesses, receive oral and written
testimony, and take such other action as may be necessary to ensure the
fair and efficient conduct of the hearing. Following the conclusion of
the hearing, the hearing officer may make a recommendation to the
Administrator based on the testimony presented at the hearing and shall
forward any such recommendation and the record of the hearing to the
Administrator.
(e) Within 180 days after the date notice is given pursuant to
paragraph (b) of this section, the Administrator shall:
[[Page 686]]
(1) Rescind the notice to the State of a public hearing if the State
takes corrective action satisfactory to the Administrator; or
(2) Rescind the finding for which the notice was given and promptly
notify the State of such rescission; or
(3) Uphold the finding for which the notice was given. In this
event, the Administrator shall revoke the State's decision that
filtration was not required or revoke the compliance schedule approved
by the State, and promulgate, as appropriate, with any appropriate
modifications, a revised filtration decision or compliance schedule and
promptly notify the State of such action.
(f) Revocation of a State's filtration decision or compliance
schedule and/or promulgation of a revised filtration decision or
compliance schedule shall take effect 90 days after the State is
notified under paragraph (e)(3) of this section.
Subpart J [Reserved]
Subpart K_Variances for Small System
Source: 63 FR 43848, Aug. 14, 1998, unless otherwise noted.
General Provisions
Sec. 142.301 What is a small system variance?
Section 1415(e) of the Act authorizes the issuance of variances from
the requirement to comply with a maximum contaminant level or treatment
technique to systems serving fewer than 10,000 persons. The purpose of
this subpart is to provide the procedures and criteria for obtaining
these variances. The regulations in this subpart shall take effect on
September 14, 1998.
Sec. 142.302 Who can issue a small system variance?
A small system variance under this subpart may only be issued by
either:
(a) A State that is exercising primary enforcement responsibility
under Subpart B for public water systems under the State's jurisdiction;
or
(b) The Administrator, for a public water system in a State which
does not have primary enforcement responsibility.
Sec. 142.303 Which size public water systems can receive a small system variance?
(a) A State exercising primary enforcement responsibility for public
water systems (or the Administrator for other systems) may grant a small
system variance to public water systems serving 3,300 or fewer persons.
(b) With the approval of the Administrator pursuant to Sec.
142.312, a State exercising primary enforcement responsibility for
public water systems may grant a small system variance to public water
systems serving more than 3,300 persons but fewer than 10,000 persons.
(c) In determining the number of persons served by the public water
system, the State or Administrator must include persons served by
consecutive systems. A small system variance granted to a public water
system would also apply to any consecutive system served by it.
Sec. 142.304 For which of the regulatory requirements is a small system
variance available?
(a) A small system variance is not available under this subpart for
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.
(b) A small system variance under this subpart is otherwise only
available for compliance with a requirement specifying a maximum
contaminant level or treatment technique for a contaminant with respect
to which;
(1) a national primary drinking water regulation was promulgated on
or after January 1, 1986; and
(2) the Administrator has published a small system variance
technology pursuant to Section 1412(b)(15) of the Act.
Note to paragraph (b)(1): Small system variances are not available
for public water systems above the pre-1986 maximum contaminant level
even if subsequently revised. If the Agency revises a pre-1986 maximum
contaminant level and makes it more stringent, then a variance would be
available for that contaminant, but only up to the pre-1986 maximum
contaminant level.
[[Page 687]]
Sec. 142.305 When can a small system variance be granted by a State?
No small system variance can be granted by a State until the later
of the following:
(a) 90 days after the State proposes to grant the small system
variance;
(b) If a State is proposing to grant a small system variance to a
public water system serving 3,300 or fewer persons and the Administrator
objects to the small system variance, the date on which the State makes
the recommended modifications or responds in writing to each objection;
or
(c) If a State is proposing to grant a small system variance to a
public water system serving a population more than 3,300 and fewer than
10,000 persons, the date the Administrator approves the small system
variance. The Administrator must approve or disapprove the variance
within 90 days after it is submitted to the Administrator for review.
Review of Small System Variance Application
Sec. 142.306 What are the responsibilities of the public water system,
State and the Administrator in ensuring that sufficient information is
available and for evaluation of a small system variance application?
(a) A public water system requesting a small system variance must
provide accurate and correct information to the State or the
Administrator to issue a small system variance in accordance with this
subpart. A State may assist a public water system in compiling
information required for the State or the Administrator to issue a small
system variance in accordance with this subpart.
(b) Based upon an application for a small system variance and other
information, and before a small system variance may be proposed under
this subpart, the State or the Administrator must find and document the
following:
(1) The public water system is eligible for a small system variance
pursuant to Sec. Sec. 142.303 (i.e., the system serves a population of
fewer than 10,000 persons) and 142.304 (i.e., the contaminant for which
the small system variance is sought is not excluded from variance
eligibility);
(2) The public water system cannot afford to comply, in accordance
with the affordability criteria established by the State (or by the
Administrator in States which do not have primary enforcement
responsibility), with the national primary drinking water regulation for
which a small system variance is sought, including by:
(i) Treatment;
(ii) Alternative sources of water supply;
(iii) Restructuring or consolidation changes, including ownership
change and/or physical consolidation with another public water system;
or
(iv) Obtaining financial assistance pursuant to Section 1452 of the
Act or any other Federal or State program;
(3) The public water system meets the source water quality
requirements for installing the small system variance technology
developed pursuant to guidance published under section 1412(b)(15) of
the Act;
(4) The public water system is financially and technically capable
of installing, operating and maintaining the applicable small system
variance technology; and
(5) The terms and conditions of the small system variance, as
developed through compliance with Sec. 142.307, ensure adequate
protection of human health, considering the following:
(i) The quality of the source water for the public water system; and
(ii) Removal efficiencies and expected useful life of the small
system variance technology.
Sec. 142.307 What terms and conditions must be included in a small
system variance?
(a) A State or the Administrator must clearly specify enforceable
terms and conditions of a small system variance.
(b) The terms and conditions of a small system variance issued under
this subpart must include, at a minimum, the following requirements:
(1) Proper and effective installation, operation and maintenance of
the applicable small system variance technology in accordance with
guidance
[[Page 688]]
published by the Administrator pursuant to section 1412(b)(15) of the
Act, taking into consideration any relevant source water characteristics
and any other site-specific conditions that may affect proper and
effective operation and maintenance of the technology;
(2) Monitoring requirements, for the contaminant for which a small
system variance is sought, as specified in 40 CFR part 141; and
(3) Any other terms or conditions that are necessary to ensure
adequate protection of public health, which may include:
(i) Public education requirements; and
(ii) Source water protection requirements.
(c) The State or the Administrator must establish a schedule for the
public water system to comply with the terms and conditions of the small
system variance which must include, at a minimum, the following
requirements:
(1) Increments of progress, such as milestone dates for the public
water system to apply for financial assistance and begin capital
improvements;
(2) Quarterly reporting to the State or Administrator of the public
water system's compliance with the terms and conditions of the small
system variance;
(3) Schedule for the State or the Administrator to review the small
system variance under paragraph (d) of this section; and
(4) Compliance with the terms and conditions of the small system
variance as soon as practicable but not later than 3 years after the
date on which the small system variance is granted. The Administrator or
State may allow up to 2 additional years if the Administrator or State
determines that additional time is necessary for the public water system
to:
(i) Complete necessary capital improvements to comply with the small
system variance technology, secure an alternative source of water, or
restructure or consolidate; or
(ii) Obtain financial assistance provided pursuant to section 1452
of the Act or any other Federal or State program.
(d) The State or the Administrator must review each small system
variance granted not less often than every 5 years after the compliance
date established in the small system variance to determine whether the
public water system continues to meet the eligibility criteria and
remains eligible for the small system variance and is complying with the
terms and conditions of the small system variance. If the public water
system would no longer be eligible for a small system variance, the
State or the Administrator must determine whether continuing the
variance is in the public interest. If the State or the Administrator
finds that continuing the variance is not in the public interest, the
variance must be withdrawn.
Public Participation
Sec. 142.308 What public notice is required before a State or the
Administrator proposes to issue a small system variance?
(a) At least fifteen (15) days before the date of proposal, and at
least thirty (30) days prior to a public meeting to discuss the proposed
small system variance, the State, Administrator, or public water system
as directed by the State or Administrator, must provide notice to all
persons served by the public water system. For billed customers,
identified in paragraph (a)(1) of this section, this notice must include
the information listed in paragraph (c) of this section. For other
persons regularly served by the system, identified in paragraph (a)(2)
of this section, the notice shall include the information identified in
paragraph (d) of this section. Notice must be provided to all persons
served by:
(1) Direct mail or other home delivery to billed customers or other
service connections, and
(2) Any other method reasonably calculated to notify, in a brief and
concise manner, other persons regularly served by the system. Such
methods may include publication in a local newspaper, posting in public
places or delivery to community organizations.
(b) At the time of proposal, the State must publish a notice in the
State equivalent to the Federal Register or a newspaper or newspapers of
wide circulation in the State, or, in the case of the Administrator, in
the Federal
[[Page 689]]
Register. This notice shall include the information listed in paragraph
(c) of this section.
(c) The notice in paragraphs (a)(1) and (b) of this section must
include, at a minimum, the following:
(1) Identification of the contaminant[s] for which a small system
variance is sought;
(2) A brief statement of the health effects associated with the
contaminant[s] for which a small system variance is sought using
language in Appendix C of Part 141 Subpart O of this chapter;
(3) The address and telephone number at which interested persons may
obtain further information concerning the contaminant and the small
system variance;
(4) A brief summary, in easily understandable terms, of the terms
and conditions of the small system variance;
(5) A description of the consumer petition process under Sec.
142.310 and information on contacting the EPA Regional Office;
(6) a brief statement announcing the public meeting required under
Sec. 142.309(a), including a statement of the purpose of the meeting,
information regarding the time and location for the meeting, and the
address and telephone number at which interested persons may obtain
further information concerning the meeting; and
(7) In communities with a large proportion of non-English-speaking
residents, as determined by the primacy agency, information in the
appropriate language regarding the content and importance of the notice.
(d) The notice in paragraph (a)(2) of this section must provide
sufficient information to alert readers to the proposed variance and
direct them where to receive additional information.
(e) At its option, the State or the Administrator may choose to
issue separate notices or additional notices related to the proposed
small system variance, provided that the requirements in paragraphs (a)
through (d) of this section are satisfied.
(f) Prior to promulgating the final variance, the State or the
Administrator must respond in writing to all significant public comments
received relating to the small system variance. Response to public
comment and any other documentation supporting the issuance of a
variance must be made available to the public after final promulgation.
Sec. 142.309 What are the public meeting requirements associated with
the proposal of a small system variance?
(a) A State or the Administrator must provide for at least one (1)
public meeting on the small system variance no later than 15 days after
the small system variance is proposed.
(b) At the time of the public meeting, the State or Administrator
must prepare and make publicly available, in addition to the information
listed in Sec. 142.308(c), either:
(1) The proposed small system variance, if the public meeting occurs
after proposal of the small system variance; or
(2) A draft of the proposed small system variance, if the public
meeting occurs prior to proposal of the proposed small system variance.
(c) Notice of the public meeting must be provided in the manner
required under Sec. 142.308 at least 30 days in advance of the public
meeting. This notice must be provided by the State, the Administrator,
or the public water system as directed by the State or Administrator.
Sec. 142.310 How can a person served by the public water system obtain
EPA review of a State proposed small system variance?
(a) Any person served by the public water system may petition the
Administrator to object to the granting of a small system variance
within 30 days after a State proposes to grant a small system variance
for a public water system.
(b) The Administrator must respond to a petition filed by any person
served by the public water system and determine whether to object to the
small system variance under Sec. 142.311, no later than 60 days after
the receipt of the petition.
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EPA Review And Approval of Small System Variances
Sec. 142.311 What procedures allow the Administrator to object to a
proposed small system variance or overturn a granted small system
variance for a public water system serving 3,300 or fewer persons?
(a) At the time a State proposes to grant a small system variance
under this subpart, the State must submit to the Administrator the
proposed small system variance and all supporting information, including
any written public comments received prior to proposal.
(b) The Administrator may review and object to any proposed small
system variance within 90 days of receipt of the proposed small system
variance. The Administrator must notify the State in writing of each
basis for the objection and propose a modification to the small system
variance to resolve the concerns of the Administrator. The State must
make the recommended modification, respond in writing to each objection,
or withdraw the proposal to grant the small system variance.
(c) If the State issues the small system 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 the Act or this rule.
Sec. 142.312 What EPA action is necessary when a State proposes to grant
a small system variance to a public water system serving a population
of more than 3,300 and fewer than 10,000 persons?
(a) At the time a State proposes to grant a small system variance to
a public water system serving a population of more than 3,300 and fewer
than 10,000 persons, the State must submit the proposed small system
variance and all supporting information, including public comments
received prior to proposal, to the Administrator.
(b) The Administrator must approve or disapprove the small system
variance within 90 days of receipt of the proposed small system variance
and supporting information. The Administrator must approve the small
system variance if it meets each requirement within the Act and this
rule.
(c) If the Administrator disapproves the small system variance, the
Administrator must notify the State in writing of the reasons for
disapproval and the small system variance does not become effective. The
State may resubmit the small system variance for review and approval
with modifications to address the objections stated by the
Administrator.
Sec. 142.313 How will the Administrator review a State's program
under this subpart?
(a) The Administrator must periodically review each State program
under this subpart to determine whether small system variances granted
by the State comply with the requirements of the Act, this rule and the
affordability criteria developed by the State.
(b) If the Administrator determines that small system variances
granted by a State are not in compliance with the requirements of the
Act, this rule or the affordability criteria developed by the State, the
Administrator shall notify the State in writing of the deficiencies and
make public the determinations.
(c) The Administrator's review will be based in part on quarterly
reports prepared by the States pursuant to Sec. 142.15(a)(1) relating
to violations of increments of progress or other violated terms or
conditions of small system variances.