AIM

Protection Agency

40 CFR Parts 141 and 142

Revisions to State Primacy Requirements

To Implement Safe Drinking Water Act

Amendments; Final Rule

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Tuesday

April 28, 1998

Part IV

Environmental

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ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 141 and 142

[FRL-6003-5]

RIN-2040-ADOO

Revisions to State Primacy

Requirements To Implement Safe

Drinking Water Act Amendments

AGENCY: Environmental Protection

Agency.

ACTION: Final rule; interpretation.

SUMMARY: Today's action amends the

regulations that set forth the

requirements for States to obtain and

retain primary enforcement authority

(primacy) for the Public Water System

Supervision (PWSS) program under

section 1413 of the Safe Drinking Water

Act (SDWA) as amended by the 1996

Amendments. This rule adds the new

administrative penalty authority

requirement that States must meet in

order to obtain or retain primacy, plus

changes the timing for a State to adopt

new or revised drinking water

regulations. The rule also changes a

State's primacy status while awaiting a

final determination on its primacy

application. Additionally, the rule's

language provides examples of

circumstances that require an

emergency plan for the provision of safe

drinking water. Lastly, this action

expands the definition of a public water

system (PWS). Since all of the above

changes are merely a codification of the

amended SDWA, the Agency is

publishing this document as a final rule.

DATES: This action is effective April 28,

1998 except for § 142.11 which contains

information collection requirements that

have not yet been approved by Office of

Management and Budget (OMB). EPA

will publish a document in the Federal

Register announcing the effective date

of§ 142.11

FOR FURTHER INFORMATION CONTACT: The

Safe Drinking Water Hotline, toll free

(800) 426-4791, or Jennifer Melch;

Regulatory Implementation Branch;

Office of Ground Water and Drinking

Water; EPA (4606), 401 M Street, S.W.,

Washington, DC 20460; telephone (202)

260-7035.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this

action are those which have primary

enforcement authority for the PWSS

program and those which meet the

criteria of the PWS definition. Regulated

categories and entities include:

Category Examples of regu- lated entities

Industry ...................... Public W ater Systems.

State Government ..... Agencies with primary

enforcement authority for the

PWSS program.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

entity is regulated by this action, you

should carefully examine the

applicability criteria in §§ 141.2, 142.2,

and 142.10 and the applicability criteria

in §§ 142.3 and 142.10 of title 40 of the

Code of Federal Regulations. If you have

questions regarding the applicability of

this action to a particular entity, consult

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

Table of Contents

A. Summary and Explanation of Today's

Action

1. Administrative Penalty Authority

2. Interim Primacy Authority

3. Time Increase for Adopting Federal

Regulations

4. Examples of Emergency Circumstances

That Require a Plan for Safe Drinking

Water

5. Revision of Public Water System

Definition

B. Impact of These Revisions

1. Executive Order 12866

2. Regulatory Flexibility Act

3. Paperwork Reduction Act

4. Unfunded Mandates Reform Act

5. Executive Order 13045 Protection of

Children From Environmental Health

Risks and Safety Risks

6. Submission to Congress and the General

Accounting Office

7. National Technology Transfer and

Advancement Act

8. Administrative Procedure Act

A. Summary and Explanation of

Today's Action

40 CFR part 142, subpart B, sets out

requirements for States to obtain and/or

retain primacy for the Public Water

System Supervision (PWSS) program as

authorized by section 1413 of the Safe

Drinking Water Act (SDWA). The Safe

Drinking Water Act Amendments of

1996 created an additional requirement

for States to obtain and/or retain

primacy for the PWSS program. Section

1413(a)(6) requires States to have

administrative penalty authority.

Today's rule adds a provision to

§ 142.10 incorporating this new

requirement. Because questions have

arisen on the meaning of section

1413(a)(6), today's preamble sets forth

EPA's interpretation of this section.

The addition of section (e) in § 142.12

of this rule is also due to the 1996

Amendments. Section 142.12(e)

explains that when a State with primacy

for all existing national primary

drinking water regulations submits a

primacy revision application, the State

is considered to have primary

enforcement authority for the new or

revised regulation while EPA makes a

final determination on the application.

Additionally, the Agency is making

revisions to § 142.10(e) to reflect the

1996 Amendments by adding examples

of emergency situations and to

§ 142.12(b) by changing the time

limitation for adopting new or revised

Federal regulations. Finally, the Agency

is revising the definition of a public

water system in both Parts 141 and 142

to codify changes to the statutory

definition. The new definition includes

certain systems that provide water for

human consumption through

constructed conveyances other than

pipes.

1. A dm inistrative Penalty Authority

Section 1413 of the SDWA sets out

the conditions under which States may

apply for, and retain, primary

enforcement responsibility with respect

to PWSs. As amended in 1996, section

1413 now requires States to have

administrative penalty authority for all

violations of their approved primacy

program, unless prohibited by the State

constitution. This encompasses

applicable requirements in parts 141

and 142 including, but not limited to,

NPDWRs, variances and exemptions,

and public notification. This includes

administrative penalty authority for

violations of any State requirements that

are more stringent than the analogous

Federal requirements on which they are

based. However, States are not required

to have administrative penalty authority

for violations of State requirements that

are broader in scope than the federal

program, or unrelated to the approved

program.

States must have the authority to

impose administrative penalties on

PWSs serving a population greater than

10,000 individuals in an amount that is

not less than $1,000 per day per

violation. For PWSs serving a

population of 10,000 individuals or less,

States must have the authority to

impose an administrative penalty that is

"adequate to ensure compliance."

However, States may establish a

maximum limitation on the total

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amount of administrative penalties that

may be imposed on a PWS per violation.

Statu tory Langu age

Section 1413 of the SDWA provides

that a State will have primary

enforcement responsibility for PWSs

during any period for which the

Administrator determines that the State

meets the requirements of section

1413(a) as implemented through EPA

regulations. One of the new conditions

added for primacy is section 1413(a)(6),

which requires that a primacy State:

(6) Has adopted authority for

administrative penalties (unless the

constitution of the State prohibits the

adoption of the authority) in a

maximum amount-

(A) In the case of a system serving a

population of more than 10,000, that is

not less than $1,000 per day per

violation; and

(B) In the case of any other system,

that is adequate to ensure compliance

(as determined by the State);

except that a State may establish a

maximum limitation on the total

amount of administrative penalties that

may be imposed on a public water

system per violation.

Interpretation of "In a Maximum

Amount * * * That is Not Less Than

$1,000 Per Day Per Violation"

The first issue for clarification is the

meaning of requiring States to have

administrative penalty authority "in a

maximum amount * * * that is not less

than $1,000 per day per violation."

Relying on both the legislative history of

the 1996 SDWA Amendments and the

principles of statutory construction,

EPA has interpreted the provision as

discussed in the following paragraphs.

The report on Senate Bill (SB)1316

says, in explaining this provision, that

States are to adopt administrative

penalties of at least $1,000 per day per

violation for large systems. Since the

language in the House Bill and in the

final version of the SDWA amendments

is identical to that in SB1316, and there

is no additional explanation of this

language, the report on SB1316 is a

helpful indicator of Congressional

intent.

Therefore, it is EPA's position that, in

order to have primacy, States must have

the authority to impose a maximum

penalty per day per violation for

systems serving a population greater

than 10,000 individuals and this

maximum must be $1,000 or greater. It

is critical that States have the authority

to impose this penalty. However, States

are not required to assess this per day

per violation penalty for systems serving

a population of more than 10,000

individuals. In particular cases, States

may assess lesser penalties than the

maximum penalty authorized by the

State, so long as they retain the

authority to impose a penalty of at least

$1,000 per day per violation.

A State's penalty authority must be

"per day per violation." If a State has

authority for administrative penalties up

to a specific dollar amount (in total, or

as per day, or per violation), but the

authority is not expressed as an amount

"per day per violation," then the

authority is not sufficient to comply

with this requirement.

Although not required to do so, a

State may establish an administrative

penalty cap. If a State establishes a cap,

the cap cannot be on the total

administrative penalty which may be

imposed on the system but may only be

on the total which may be imposed on

the system "per violation." For

example, a State could obtain authority

for administrative penalties of $1,000

per day per violation, not to exceed

$25,000 for each violation. If a PWS in

that State had 3 maximum contaminant

level violations, each of which lasted a

month, the system could be assessed an

administrative penalty of $75,000. (This

would be calculated as follows: The

PWS had 3 violations at $1,000 per day

x 30 days for each violation; thus, the

system could be assessed $90,000, if

there was no cap. However, because the

State has established a cap of $25,000

for each violation, the PWS could only

be assessed the maximum for each

violation-$25,000 x 3 = $75,000).

Interpretation of "Adequate To Ensure

Compliance"

The next area subject to interpretation

is what penalty is "adequate to ensure

compliance" for systems serving a

population of 10,000 or fewer

individuals. This provision is designed

to give the States flexibility in dealing

with the smaller systems. The provision

recognizes that some of the smaller

systems face special challenges in

complying with the requirements of the

SDWA and its regulations and may not

have the financial capability to pay a

large penalty. Moreover, with some of

the small and very small systems, a

modest penalty can serve as a great

deterrent. In addition, assessing modest

penalties often requires less

burdensome hearing procedures and

thus can be more efficient. At the same

time, however, it must be remembered

that a good portion of the small systems

are, in fact, profit-making businesses

and therefore should not be permitted to

gain an economic advantage through

their noncompliance with the law.

Given these factors, as well as many

others, States must determine, for

systems serving a population of 10,000

individuals or less, a level or levels of

administrative penalties which will, in

their opinion, ensure compliance. The

level can be the same as that for the

larger systems.

Determination of State Administrative

Penalty Authority

As a part of the primacy application

review process, EPA will review the

State laws and regulations to determine

whether the State has the requisite

administrative penalty authority or

whether its constitution prohibits the

adoption of such authority. States must

submit copies of their laws and

regulations; States that believe that their

constitution prohibits administrative

penalty authority must submit a copy of

their constitution and an interpretation

from the State Attorney General. EPA's

review will likely also include a request

for a State Attorney General to provide

an interpretation of the State's authority.

The Attorney General's statement will

be needed particularly in cases where

the State laws or regulations use

different language than the SDWA. EPA

will also require States to submit a

rationale for their determination that the

chosen level of administrative penalty

authority for PWSs serving a population

of 10,000 individuals or less is

appropriate. Additionally, EPA may

request an explanation from the States

on how they plan to use their penalty

authority (that is, a penalty policy). In

today's rule, EPA is amending 40 CFR

142.11 to clarify the documentation

States must provide for EPA's review of

State administrative penalty authority.

Process for Review and Approval of

State Programs

The process EPA will use to review

and approve State programs will vary

based on the circumstances. In cases

where the State has adequate

administrative penalty authority that is

already part of an approved primacy

program, no formal process under Part

142 is required to approve the program.

In situations where either the State has

adequate administrative penalty

authority but it is not part of an

approved primacy program, or where

the State administrative penalty

authority is not adequate to meet the

new requirement, the State must follow

the process for primacy program

revisions in 40 CFR 142.12.

If or when it becomes clear that a

State is not going to obtain the required

authority, or if the State is not acting in

good faith to obtain the required

authority, EPA will seek to begin the

primacy withdrawal process under 40

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CFR 142.17. There are serious

consequences if a State loses primacy,

including the loss of Drinking Water

State Revolving Fund (DWSRF) monies.

2. Interim Prim acy A uthority

EPA has added new § 142.12(e) to

incorporate the new process identified

in the 1996 Amendments for granting

primary enforcement authority to States

while their applications to modify their

primacy programs are under review.

Previously, States that submitted these

applications did not receive primacy for

the changes in their State programs until

EPA approved the applications. The

new process, which is available only to

States that have primacy for every

existing national primary drinking water

regulation in effect when the new

regulation is promulgated, grants

interim primary enforcement authority

for a new or revised regulation during

the period in which EPA is making a

determination with regard to primacy

for that new or revised regulation. This

interim enforcement authority begins on

the date of the primacy application

submission or the effective date of the

new or revised State regulation,

whichever is later, and ends when EPA

makes a final determination. Interim

primacy has no effect on EPA's final

determination and States should not

assume that their applications will be

approved based on this interim primacy.

3. Time Increase for Adopting Federal

Regulations

EPA has amended the language in

§ 142.12(b) to increase the time for a

State to adopt new or revised Federal

regulations from 18 months to 2 years to

reflect section 1413(a)(1) as revised by

the 1996 Amendments.

4. Examples of Emergency

Circumstances That Require a Plan for

Safe Drinking Water

The Agency has added examples of

natural disasters to § 142.10(e) to

maintain consistency and uniformity

with the statutory counterpart section

1413(a)(5), which was revised in the

1996 Amendments.

5. Revision of Public Water System

Definition

Public water systems, unless they

meet the four criteria enumerated in

section 1411 or qualify for a variance or

exemption under sections 1415 or 1416,

must comply with the national primary

drinking water regulations promulgated

in 40 CFR Part 141. Before the 1996

Amendments, the SDWA defined a PWS

as a system that provided piped water

for human consumption to the public

and had at least fifteen service

connections or regularly served at least

twenty-five individuals. The 1996

Amendments expanded the means of

delivering water to include not only

systems which provide water for human

consumption through pipes, but also

systems which provide water for human

consumption through "other

constructed conveyances." In today's

rule, EPA codifies this change by

amending the definition of "public

water system" in §§ 141.2 and 142.2 as

well as by adding or clarifying several

other definitions.

The 1996 Amendments did not

change the connections or users served

requirement. However, water suppliers

that became PWSs only as a result of the

changed definition will not be

considered PWSs, subject to SDWA

requirements, until after August 5, 1998.

"Service Connection" Exclusions

For systems which only could become

PWSs as a result of the broadened

definition, the Amendments allow

certain connections to be excluded, for

purposes of the definition, if the water

supplied by that connection meets any

of the three criteria enumerated in

section 1401(4)(B)(i).

First, a connection is excluded where

the water is used exclusively for

purposes other than "residential uses."

Residential uses consist of drinking,

bathing, cooking, or similar uses. Next,

a connection may be excluded if the

State exercising primary enforcement

responsibility or the Administrator

determines that "alternative water" to

achieve the equivalent level of public

health protection afforded by the

applicable national primary drinking

water regulations is provided for

residential or similar uses for drinking

and cooking. The third exclusion may

apply where the Administrator or the

State exercising primary enforcement

responsibility determines that the water

provided for residential or similar uses

for drinking, cooking, and bathing is

centrally treated or treated at the point

of entry by the provider, a pass-through

entity, or the user to achieve the

equivalent level of protection provided

by the applicable national primary

drinking water regulations.

"Special Irrigation District" Exemption

A piped water system may be

considered a "special irrigation district"

if it was in existence prior to May 18,

1994, and provides primarily

agricultural service with only incidental

residential or similar use. Special

irrigation districts are not considered to

be PWSs if the system or the residential

or similar users of the system comply

with the requirements of the alternative

water exclusion in section

1401(4)(B)(i)(II) or the treatment

exclusion in section 1401(4)(B)(i)(III).

Implementation of the New PWS

Definition

Systems newly subject to SDWA

regulations under the amended

definition of a PWS will not be

regulated until August 6, 1998, as

provided in section 1401(4)(C) of the

SDWA. States with primary

enforcement authority must revise their

programs within two years from the

effective date of this regulation to

include waters suppliers that became

PWSs only as a result of the new PWS

definition. States must follow the

process for primacy program revisions

in 40 CFR 142.12. To assist States in

revising their programs, EPA plans to

issue guidance providing a more

detailed interpretation of the new

definition and the statutory exclusions.

B. Impact of These Revisions

1. Executive Order 12866

Under Executive Order 12866, [58 FR

51,735 (October 4, 1993)] the Agency

must determine whether the regulatory

action is "significant" and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines "significant

regulatory action" as one that is likely

to result in a rule that may:

(a) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(b) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(c) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(d) Raise novel legal or policy issues

arising out of legal mandates, the

President's priorities, or the principles

set forth in the Executive Order.

It has been determined that this rule

is not a "significant regulatory action"

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

2. Regulatory Flexibility Act

The Agency has determined that the

rule being issued today is not subject to

the Regulatory Flexibility Act (RFA),

which generally requires an Agency to

conduct a regulatory flexibility analysis

of any significant impact the rule will

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have on a substantial number of small

entities. By its terms, the RFA applies

only to rules subject to notice and

comment rulemaking requirements

under the Administrative Procedure Act

(APA) or any other statute. Today's rule

is not subject to notice and comment

requirements under the APA or any

other statute because it falls into the

interpretative statement exception

under APA section 553(b) and because

the Agency has found "good cause" to

publish without prior notice and

comment. See section B.8.

3. Paperwork Reduction Act

The information collection

requirements in this rule will be

submitted for approval to the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq. An Information Collection

Request (ICR) document has been

prepared by EPA (ICR No. 1836.01) and

a copy may be obtained from Sandy

Farmer, OPPE Regulatory Information

Division; U.S. Environmental Protection

Agency (2137); 401 M Street, S.W.;

Washington, DC 20460 or by calling

(202) 260-2740. The information

requirements are not effective until

OMB approves them.

This information collection is

necessary because the SDWA

Amendments of 1996 added a new

element to the requirements for States to

obtain and/or retain primacy for the

PWSS program. In order for EPA to

determine whether States meet the new

administrative penalty authority

requirement, States must submit a copy

of their legislation authorizing the

penalty authority and a description of

their authority for administrative

penalties that will ensure adequate

compliance of systems serving a

population of 10,000 individuals or less.

In accordance with the procedures

outlined in § 142.11(7)(i) and § 142.12

(c)(iii), the State Attorney General must

certifiy that the laws and regulations

were duly adopted and are enforceable.

Alternatively, if a State constitution

prohibits assessing administrative

penalties, the State must submit a copy

of the relevant provision of the

constitution as well as an Attorney

General's statement confirming that

interpretation. Furthermore, as provided

in § 142.11(a)(7)(ii), as amended by this

rule, and § 142.12(c), EPA may

additionally require supplemental

statements from the State Attorney

General, (such as an interpretation of

the statutory language), when the above

supplied information is deemed

insufficient for a decision.

Collecting and reporting this

information will require a total

respondent cost burden estimated at

$37,954.63 and 696.20 hours. This

estimate includes the time for gathering,

analyzing, writing, and reporting

information. There will be no capital,

start-up, or operation and maintenance

costs. This data collection does not

involve periodic reporting or

recordkeeping. Rather, this will be a one

time effort of approximately 12 hours

and 26 minutes by each of the 56 States

who wish to adopt the administrative

penalty authority necessary in order to

obtain or retain primacy.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing way to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA's regulations are listed

in 40 CFR Part 9 and 48 CFR Chapter

15.

Send comments on the Agency's need

for this information, the accuracy of the

provided burden estimates, and any

suggested methods for minimizing

respondent burden, including through

the use of automated collection

techniques to the Director, OPPE

Regulatory Information Division; U.S.

Environmental Protection Agency

(2137); 401 M. Street; S.W.; Washington,

DC 20460; and to the Office of

Information and Regulatory Affairs,

Office of Management and Budget, 725

17th Street, N.W.; Washington, DC

20503; marked "Attention: Desk Officer

for EPA." Review will be in accordance

with the procedures in 5 CFR 1320.10.

Comments are requested by June 29,

1998. Include the ICR number in any

correspondence.

4. Unfunded Mandates Reform Act and

Executive Order 12875

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Pub. L.

104-4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with "Federal mandates" that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

Today's rule contains no Federal

mandates (under the regulatory

provisions of Title II of the UMRA) for

State, local, or tribal governments or the

private sector. The UMRA generally

excludes from the definition of "Federal

intergovernmental mandate" duties that

arise from participation in a voluntary

federal program. The requirements

under section 1413(a) of the SDWA are

only mandatory if a State chooses to

have primary enforcement

responsibility for PWSs. Additionally,

today's rule implements requirements

specifically set forth by the Congress in

sections 1401 and 1413 of the SDWA

without the exercise of any discretion

by EPA.

In any event, even if this rule were

not excluded from the definition of

"Federal intergovernmental mandate,"

EPA has determined that this rule does

not contain a Federal mandate that may

result in expenditures of $100 million or

more for State, local, and tribal

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governments, in the aggregate, or the

private sector in any one year.

Thus, today's rule is not subject to the

requirements of sections 202 and 205 of

the UMRA.

Additionally, EPA has determined

that this rule contains no regulatory

requirements that might significantly or

uniquely affect small governments,

including tribal governments. Rather,

this rule primarily affects State

governments. Therefore, this action does

not require a small government agency

plan under UMRA section 203.

Because this rule imposes no

intergovernmental mandate, it also is

not subject to Executive Order 12875

(Enhancing the Intergovernmental

Partnership).

5. Executive Order 13045-Protection of

Children From Environmental Health

Risks and Safety Risks

Today's action is not subject to

Executive Order 13045 [62 FR 19885

(April 23, 1997)] which requires

agencies to identify and assess the

environmental health and safety risks of

their rules on children. Pursuant to the

definitions in section 2-202, Executive

Order 13045 only applies to rules that

are economically significant as defined

under Executive Order 12866 and

concern an environmental health or

safety risk that may disproportionately

affect children. This rule is not

economically significant and does not

concern a risk disproportionately

affecting children.

6. Submission to Congress and the

General Accounting Office

The Congressional Review Act, (5

U.S.C. 801 et seq.) as added by the

Small Business Regulatory Enforcement

Fairness Act of 1996 (SBREFA),

generally provides that before a rule

may take effect, the agency

promulgating the rule must submit a

rule report, which includes a copy of

the rule, to each House of the Congress

and to the Comptroller General of the

United States. However, section 808

provides that any rule for which the

issuing agency for good cause finds (and

incorporates the finding and a brief

statement of reasons therefore in the

rule) that notice and public procedure

thereon are impracticable, unnecessary

or contrary to the public interest, shall

take effect at such time as the agency

promulgating the rule determines. 5

U.S.C. 808(2). As discussed in Section

B.8., EPA has made such a good cause

finding for this rule, including the

reasons therefore, and established an

effective date of April 28, 1998. EPA

will submit a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives, and the Comptroller

General of the United States Office prior

to publication of the rule in the Federal

Register. This rule is not a "major rule"

as defined by 5 U.S.C. 804(2).

7. National Technology Transfer and

A dvancem ent Act

Under section 12(d) of the National

Technology Transfer and Advancement

Act, the Agency is required to use

voluntary consensus standards in its

regulatory and procurement activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

material specifications, test methods,

sampling procedures, business

practices, etc.) that are developed or

adopted by voluntary consensus

standard bodies. Where available and

potentially applicable voluntary

consensus standards are not used by

EPA, the Act requires the Agency to

provide Congress, through the Office of

Management and Budget, an

explanation of the reasons for not using

such standards. Because this rule does

not involve or require the use of any

technical standards, EPA does not

believe that this Act is applicable to this

rule. Moreover, EPA is unaware of any

voluntary consensus standards relevant

to this rulemaking. Therefore, even if

the Act were applicable to this kind of

rulemaking, EPA does not believe that

there are any "available or potentially

applicable" voluntary consensus

standards.

8. Administrative Procedure Act

Because this rule merely codifies and

interprets a statute, the amended

SDWA, it is an "interpretative rule." As

a result, it is exempt from the notice and

comment requirements for rulemakings

under section 553 of the APA (See

section 553(b)(3)(A)). In addition,

because this rule merely codifies

statutory requirements and makes

clarifying changes to the rules necessary

to implement the amended statute,

notice and comment is "unnecessary"

and thus the Agency has "good cause"

to publish this rule without prior notice

and comment (APA section

553(b)(3)(B)). For the same reasons, EPA

is making the provisions of this rule

effective upon promulgation, as

authorized under the APA (See sections

553(d)(2) and (3)). However, systems

newly subject to SDWA regulation

under the amended definition will not

be regulated until August 6, 1998 as

provided in the 1996 Amendments.

List of Subjects in 40 CFR Parts 141 and

142

Environmental protection,

Administrative practices and

procedures, Intergovernmental relations,

Reporting and recordkeeping

requirements, Water supply, Indians.

Dated: April 17, 1998.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, the Environmental Protection

Agency amends 40 CFR Parts 141 and

142 as follows:

PART 141-NATIONAL PRIMARY

DRINKING WATER REGULATIONS

1. The authority citation for part 141

continues to read as follows:

Authority: 42 U.S.C. 300f, 300g, 300g 1,

300g 2, 300g 3, 300g 4, 300g 5, 300g 6,

300j 4, and 300j 9.

2. In § 141.2 by revising the

definitions of non-community water

system and public water system and

adding the following definitions in

alphabetical order.

§141.2 Definitions.

Non-comm unity water system means

a public water system that is not a

community water system. A noncommunity water system is either a

"transient non-community water system

(TWS)" or a "non-transient noncommunity water system (NTNCWS)."

Public water system or PWS means a

system for the provision to the public of

water for human consumption through

pipes or, after August 5, 1998, other

constructed conveyances, if such system

has at least fifteen service connections

or regularly serves an average of at least

twenty-five individuals daily at least 60

days out of the year. Such term

includes: any collection, treatment,

storage, and distribution facilities under

control of the operator of such system

and used primarily in connection with

such system; and any collection or

pretreatment storage facilities not under

such control which are used primarily

in connection with such system. Such

term does not include any "special

irrigation district." A public water

system is either a "community water

system" or a "noncommunity water

system."

Service connection, as used in the

definition of public water system, does

not include a connection to a system

that delivers water by a constructed

conveyance other than a pipe if:

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(1) The water is used exclusively for

purposes other than residential uses

(consisting of drinking, bathing, and

cooking, or other similar uses);

(2) The State determines that

alternative water to achieve the

equivalent level of public health

protection provided by the applicable

national primary drinking water

regulation is provided for residential or

similar uses for drinking and cooking; or

(3) The State determines that the

water provided for residential or similar

uses for drinking, cooking, and bathing

is centrally treated or treated at the

point of entry by the provider, a passthrough entity, or the user to achieve the

equivalent level of protection provided

by the applicable national primary

drinking water regulations. * * * * *

Special irrigation district means an

irrigation district in existence prior to

May 18, 1994 that provides primarily

agricultural service through a piped

water system with only incidental

residential or similar use where the

system or the residential or similar users

of the system comply with the exclusion

provisions in section 1401(4)(B)(i)(II) or

(III).

* * * * *

PART 142-NATIONAL PRIMARY

DRINKING WATER REGULATIONS

IMPLEMENTATION

1. The authority citation for part 142

continues to read as follows:

Authority: 42 U.S.C. 300f, 300g, 300g 1,

300g 2, 300g 3, 300g 4, 300g 5, 300g 6,

300j 4, and 300j 9.

2. In § 142.2 by revising the definition

ofpublic water system and adding the

following definitions in alphabetical

order.

§ 142.2 Definitions. * * * * *

Public water system or PWS means a

system for the provision to the public of

water for human consumption through

pipes or, after August 5, 1998, other

constructed conveyances, if such system

has at least fifteen service connections

or regularly serves an average of at least

twenty-five individuals daily at least 60

days out of the year. Such term

includes:

Any collection, treatment, storage,

and distribution facilities under control

of the operator of such system and used

primarily in connection with such

system; and any collection or

pretreatment storage facilities not under

such control which are used primarily

in connection with such system. Such

term does not include any "special

irrigation district." A public water

system is either a "community water

system" or a "noncommunity water

system" as defined in § 141.2. * * * * *

Service connection, as used in the

definition of public water system, does

not include a connection to a system

that delivers water by a constructed

conveyance other than a pipe if:

(1) The water is used exclusively for

purposes other than residential uses

(consisting of drinking, bathing, and

cooking, or other similar uses);

(2) The Administrator or the State

exercising primary enforcement

responsibility for public water systems,

determines that alternative water to

achieve the equivalent level of public

health protection provided by the

applicable national primary drinking

water regulation is provided for

residential or similar uses for drinking

and cooking; or

(3) The Administrator or the State

exercising primary enforcement

responsibility for public water systems,

determines that the water provided for

residential or similar uses for drinking,

cooking, and bathing is centrally treated

or treated at the point of entry by the

provider, a pass-through entity, or the

user to achieve the equivalent level of

protection provided by the applicable

national primary drinking water

regulations.

Special irrigation district means an

irrigation district in existence prior to

May 18, 1994 that provides primarily

agricultural service through a piped

water system with only incidental

residential or similar use where the

system or the residential or similar users

of the system comply with the exclusion

provisions in section 1401(4)(B)(i)(II) or

(III).

* * * * *

3. In § 142.10 by revising paragraph

(e), redesignating paragraph (f) as

paragraph (g) and adding paragraph (f)

to read as follows:

§ 142.10 Requirements for a determination

of primary enforcement responsibility. * * * * *

(e) Has adopted and can implement

an adequate plan for the provision of

safe drinking water under emergency

circumstances including, but not

limited to, earthquakes, floods,

hurricanes, and other natural disasters.

(f)(1) Has adopted authority for

assessing administrative penalties

unless the constitution of the State

prohibits the adoption of such authority.

For public water systems serving a

population of more than 10,000

individuals, States must have the

authority to impose a penalty of at least

$1,000 per day per violation. For public

water systems serving a population of

10,000 or fewer individuals, States must

have penalties that are adequate to

ensure compliance with the State

regulations as determined by the State.

(2) As long as criteria in paragraph

(f)(1) of this section are met, States may

establish a maximum administrative

penalty per violation that may be

assessed on a public water system. * * * * *

4. In § 142.11 by redesignating

paragraph (a)(6) as paragraph (a)(7) and

adding new paragraph (a)(6) to read as

follows:

§142.11 Initial determination of primary

enforcement responsibility.

(a) * * *

(6)(i) A copy of the State statutory and

regulatory provisions authorizing the

executive branch of the State

government to impose an administrative

penalty on all public water systems, and

a brief description of the State's

authority for administrative penalties

that will ensure adequate compliance of

systems serving a population of 10,000

or fewer individuals.

(ii) In instances where the State

constitution prohibits the executive

branch of the State government from

assessing any penalty, the State shall

submit a copy of the applicable part of

its constitution and a statement from its

Attorney General confirming this

interpretation.

* *

5. Amend § 142.12, by revising

paragraph (b)(1) and by adding

paragraph (e) to read as follows:

§ 142.12 Revision of State programs. * * * * *

(b)* * *

(1) Complete and final State requests

for approval of program revisions to

adopt new or revised EPA regulations

must be submitted to the Administrator

not later than 2 years after promulgation

of the new or revised EPA regulations,

unless the State requests an extension

and the Administrator has approved the

request pursuant to paragraph (b)(2) of

this section. If the State expects to

submit a final State request for approval

of a program revision to EPA more than

2 years after promulgation of the new or

revised EPA regulations, the State shall

request an extension of the deadline

before the expiration of the 2-year

period.

* * * * *

(e) Interim primary enforcement

authority. A State with an approved

primacy program for each existing

national primary drinking water

regulation shall be considered to have

interim primary enforcement authority

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with respect to each new or revised

national drinking water regulation that

it adopts beginning when the new or

revised State regulation becomes

effective or when the complete primacy

revision application is submitted to the

Administrator, whichever is later, and

shall end when the Administrator

approves or disapproves the State's

revised primacy program.

[FR Doc. 98 11260 Filed 4 27 98; 8:45 am]

BILLING CODE 6560-50-P

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