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## Regulatory Flexibility Act Section 610 Review of the Radionuclides National Primary Drinking Water Regulations

United States Environmental Protection Agency

Office of Water

October 20, 2010

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Results of Section 610 Reviewof the Radionuclides Drinking Water Regulations Background
On December 7, 2000 (65 FR 76708), EPA promulgated the final national primary drinking water regulations (NPDW Rs) fo r nonradon radionuclides as authorized by the Safe Drinking Water Act (SDWA). In this action, referred to as the Radionuclides Rule, EPA promulgated maximum contaminant level goals (MCLGs), maximum contaminant levels (MCLs), monitoring, reporting, and public notification requirements for gross alpha particle activi ty, combined radium

226 and 228, beta particle and photon activity , and uranium. The Radionuclides Rule became effective on December 8, 2003. Section 610 of the Regulatory Flexibility Act requires federal agencies to review regulations that have significa nt economic impact on a substantial number of small entities within 10 years of their adoption as final rules. Before the Radionuclides Rule was promulgated EPA developed a Regulatory Flexibility Analysis and took several steps to lessen the impacts on sma ll entities. These steps included: (1) The selection of a less stringent MCL for uranium, (2) a reduction in the overall monitoring frequencies for systems with radionuclides levels less than the MCL, (3) allowance of grandfathered data and State monitorin g discretion for determining the initial monitoring baseline, and (4) the exclusion of nontransient, non

- community water systems from the radionuclides regulations. Pursuant to section 610 of the Regulatory Flexibility Act, EPA has reviewed this rule to d etermine if

i t should be continued without change, or should be rescinded or amended to minimize adverse economic impacts on small entities. This review was announced in the Regulatory Agenda which was published in the Federal Register in April 26, 2010 (7 5 FR 21883). As part of

t his review, EPA considered, and solicited comments on, the following factors: (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule; (3) the complexity of the rule; (4) the exten t to which the rule overlaps, duplicates, or conflicts with other Federal, State, or local government rules; and (5) the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.
EPA received six com ment letters in response to the April 26, 2010 Federal Register notice. One of t he six letters was related to the proposed rule fo r radon. Since the December 2000 Radionuclides Rule did not include rulemaking on radon, any response to this comment letter is outside the scope of this Section 610 review. All the letters are available for public inspection in the rulemaking docket (docket number EPA

- HQ

- OW

-2010

- 0166 at www.regulations.gov ). The results of EPA’s Section 610 review of the Radionuclides Rule are presented in this report. 

### Discussion of Factors required by Section 610 of the Regulatory Flexibility Act
1. Continued need for the rule. There was consensus among the commenters about the continued need for the Radionuclides Rule, because it serves as an important tool to protect the health of people who get their drinking water from public systems using sources of water with high levels of radionuclides. Non e of the commenters expressed a need to rescind of the rule.

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One commenter suggested expanding the scope of the rule to apply to non

-transient non

community water systems, because in his State some of these systems have found radionuclides levels above th e MCLs. W hen the final rule was promulgated in 2000, EPA decided not to regulate NTNCWSbecause the Agency had insufficient contaminant occurrence data on a national level to determine if regulation of these systems would reduce risk and provide for greate r health protection. Also, EPA believed that regulating NTNCWS , which tend to be small systems, would have resulted in increased economic burden for small entities. Since the aim of the Section 610 review is to determine whether there are ways to reduce a ny burdens of an existing rule that unnecessarily impact small entities, this comment is outside the scope of this analysis. If States find that radionuclides are occurring in NTNCWS s, most States have the discretion to regulate radionuclides in these systems. 2. Nature of complaints or comments received concerning the rule. There were three main issues for which the commenters requested that the rule be amended to ease burden on small systems. These issues were the uncertainty associated with analytical m ethods for detection of contaminants, the cost of disposal of the treatment waste streams and the difficulties associated with understanding contaminant monitoring requirements. W e address each of these concerns and the actions that EPA has taken to resolve these concerns below:

 An alytical Methods EPA is aware that there have been concerns reported related to the variability of analytical results for the Radionuclides from different laboratories. EPA initiated an effort to understand wh y the problem was occurring. EPA believes that in some laboratories there is a lack of qualified radio

- chemists to conduct the radiochemical analyses for Radionuclides. This is in part due to retirements of qualified and experienced radio

- chemists. In addition some laboratories were not following the appropriate qual ity assurance and quality control procedures associated with certain analytical methods and as a result were reporting wrong data values to the water systems. EPA has taken action to address the deficiencies that have been found in some laboratories, incl uding offering training courses for laboratory auditors and state laboratory analysts. Additionally EPA has promoted radiochemistry training through the supplement to the “Manual for the Certification of Laboratories Analyzing Drinking Water .”
Wh ile EPA recognizes that there have been some issues identified with the variability of analytical results for Radionuclides it does not believe that this is a direct result of deficiencies with the Rule, but rather an issue resulting from a decrease in qualified pe rsonnel to perform the analyses. EPA believes that guidance provided to the states and laboratories will improve the reliability of the analyses.

 Handling & Disposal of Waste Stream EPA is aware of the difficulties of handling and disposing of treatment waste streams. As a result EPA has issued several guidance documents to help systems comply with the Radionuclide Rule while minimizing the economic impact of handling and disposing of the treatment waste streams. These guidance documents can be found in the EPA website at http://water.epa.gov/lawsregs/rulesregs/sdwa/radionuclides/compliancehelp. cfm

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In addition EPA has developed the Software Program to Ascertain Radionuclide Residual Concentrations (SPARCC), to estimate quantities and concentrations of radionuclides in water treatment plant residuals. The software is intended for water systems to model their treatment operations for the most efficient configuration. The most efficient configuration of the treatment process is one which will allow the system to comply with the radionuclide removal as required by the rule, while keeping the generat ion of treatment waste streams at a minimum. In addition EPA has worked with other Federal Agencies such as the Nuclear Regulatory Commission and the Department of Transportation; to develop a guidance document called: “A Regulator’s Guide to the Manageme nt of Radioactive Residuals from Drinking Water Treatment Technologies”. The guidance document is available at http://www.epa.gov/ogwdw/radionuclides/pdfs/gui de_radionuclides_regulatorsguide.pdf

. The purpose of the unified guidance is to help States address radionuclide disposal options for systems with elevated levels of radionuclides. EPA believes that these resources will help systems understand the requirem ents of the rule, while helping them comply with other applicable environmental statues.

 Monitoring Requirements EPA received several comments on the monitoring requirements of the Radionuclides Rule. Most of the comments had to do with the variability of analytical results obtained as described in the first bullet. The monitoring requirements of the Radionuclides Rule are based on the Standardized Monitoring Framework, which calls for a performance based approach for future monitoring requirements. Und er this approach, monitoring requirements are based on past contaminant detection performance. The Rule states that if monitoring results are below the detection limit, then the system will have to conduct its next monitoring within nine years. If the mo nitoring results are above the detection limit but below one

- half of the MCL, then the system needs to do the next monitoring within six years. If the monitoring results are above one

- half the MCL but below the MCL, then the system needs to do the next mon itoring within three years. Finally, if the monitoring results are above the MCL, then the system needs to do quarterly monitoring until there are four consecutive quarterly monitoring results below the MCL, at that time the system will be placed in the co rresponding monitoring scheme as previously indicated. The main concern of the commenters is that the problems with analytical methods and the associated variability in the detection results are causing systems on reduced monitoring to obtain results stating that the system is exceeding the MCL. Commenters claim that this causes unnecessary increased monitoring for an otherwise consistent water supply which would normally be in compliance of the MCL. EPA agrees with the commenters that the variability of analytical results obtained from the laboratories causes uncertainty whether increased monitoring is required for the affected system. EPA believes that these problems are related to poor implementation of the analytical methods and to the la ck of qualified personnel to perform radiochemical analysis. The problems being described by the commenters related to monitoring requirements are not a result of lack of clarity of the rule, but rather a n effect associated with the variability of results obtained from some laboratories.

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3. Complexity

of the rule. Comments regarding the complexity of the rule were focused on the monitoring requirements and the technical interpretation of monitoring results. There was also one comment stating that the Rule implementation was not complex. After considering the comments EPA believes that there are adequate guidance documents available on the EPA website to help systems and States understand the correct implementation of the Rule. In addition to providing guidance documents EPA also conducts periodic training courses to help the regulated community understand the requirements of the Radionuclides Rule. More information on past training courses can be found at http://water .epa.gov/lawsregs/rulesregs/sdwa/radionuclides/compliancehelp.cfm#four

. 4. Extent to which the rule overlaps, duplicates, or conflicts with other federal, state, or local government rules. Some commenters expressed concerns about the burden that results fro m complying with the Rule as it relates to the appropriate disposal of wastes generated after the treatment of water sources with elevated levels of radionuclides. The main concern is that some systems might have to comply with other environmental statues as a result of the generation of wastes from the treatment of water to remove radionuclides. EPA has developed guidance documents to help the regulated community comply with the Rule while reducing the amount of wastes generated. Given the targeted nature of the Rule towards drinking water, and the guidance provided for complying with other rules, EPA does not believes that the Radionuclides Rule overlaps, duplicates or conflicts with other rules.
5. The degree to which technology, economic conditions, or other factors have changed in the area affected by the R ule. No specific issues were identified by the commenters regarding whether technological or economic conditions had changed in the area affected by the Rule since it was originally promulgated.
EPA will continue to periodically review the effectiveness of the Radionuclides Rule through the framework provided by the SDWA

. SDWA requires that EPA review all of its drinking water regulations every six years and revise them if appropriate. The purpose of the review is to identify current health effects assessments, changes in technology, and other factors that could support a regulatory revision that will maintain or strengthen public health protection. EPA completed its first Six Year Review in 2003, and its second Six Year Review in 2010. The conclusions of those reviews as they pertain to the Radionuclides Rule were that the Agency did not believe that revisions to the Rule were appropriate because there was no new information regarding health effects, or analytical and treatment feasibility that would warrant a reconsideration of the MCL. Conclusion
Wh ile none of the commenters expressed a need to rescind the R ule, most of the comments were aimed at suggesting that the Agency make clarifications in certain areas of the R ule to aid small entities in R ule compliance. After reviewing all the comments regarding this Regulatory Flexibility Act Section 610 review the Agency has concluded that revisions or amendments to

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minimize economic impacts on small entities from the Radionuclides R ule are not warranted at this time

. EPA will continue to evaluate the effectiveness of the Radionuclides R ule and the potential to decrease the R ule’s implementation burden within the framework provided by the SDWA and other Agency initiatives. EPA is also evaluating the need to provide additional guidance and clarification on those issues raised by the commenters to assist in the R ule implementation. The Agency also bases its decision to not revise or amend the R ule at this time on the analysis conducted during the promulgation of the R ule which were aimed at reducing economic burden on small entities. Among the measures that the Agency took , at the time of Rule promulgation, to minimize impacts on small entities are: (1) The selection of a less stringent MCL for uranium, (2) a reduction in the overall monitoring frequencies for systems with radionuclides levels less than the MCL, (3) allowance of grandfathered data and State monitoring discreti on for determining the initial monitoring baseline, and (4) the exclusion of non

-transient, non

community water systems from the radionuclides regulations. EPA believes these measures remain appropriate. EPA continues to view the NPDWRs for radionuclides as important to ensure and protect the health of consumers served by public drinking water systems and intends to continue to require compliance with these NPDWRs.