AIM


# Protection 

# Agency

40 CFR Parts 141 and 142 

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

23361 

# Tuesday April 28, 1998



# Part IV


# Environmental

HeinOnline -- 63 Fed. Reg. 23361 1998

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

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 141 and 142 [FRL-6003-5]
RIN-2040-ADOO

RevisionstoState Primacy Requirements To Implement Safe DrinkingWater ActAmendments
AGENCY: Environmental Protection Agency. ACTION: Finalrule; interpretation.
SUMMARY: Today's action amends the regulations that setforth the requirements for States to obtain and retain primary enforcement authority (primacy)for thePublic Water System Supervision (PWSS) program under section 1413 ofthe Safe DrinkingWater Act (SDWA) as amended by the 1996 Amendments. Thisrule adds thenew administrative penalty authority requirement that States must meet in order to obtain orretain primacy, plus changes thetiming for a State to adopt

new orrevised drinking water regulations. Therule also changes a State'sprimacy status while awaiting a final determination on itsprimacy application. Additionally, therule's language provides examples of circumstances thatrequire an emergency plan for the provision ofsafe drinking water. Lastly, this action expands the definition ofapublicwater system (PWS). Since allofthe above changes are merely a codification ofthe amended SDWA, theAgency is publishing this document asa finalrule. DATES: This action is effective April 28, 1998 except for §142.11 which contains information collection requirements that have not yet been approved byOffice 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 

### SafeDrinking WaterHotline, toll free (800)426-4791, orJennifer Melch; Regulatory Implementation Branch; Office ofGround Water and Drinking Water;EPA (4606),401 M Street, S.W., Washington, DC20460; telephone (202) 260-7035. SUPPLEMENTARY INFORMATION: 

### Regulated Entities

Entities potentially regulated by this action are those which have primary enforcement authority forthePWSS program and those which meet the criteria ofthePWS definition. Regulated categories and entities include: Category Examples of regu- latedentities
Industry

...................... PublicWater Systems. State Government

..... Agencies with primary enforcement authority forthe PWSS program.

This table is not intended to be exhaustive, but rather provides aguide for readers regarding entities likely to be regulated by this action. This table lists the types ofentities that EPA is now

aware could potentially be regulated by this action. Other types ofentities not listed in the table could also be regulated. To determine whether your entity isregulated 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 oftitle 40 ofthe Code ofFederal Regulations. Ifyou 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 ofContents A. Summary and Explanation ofToday's Action 1.Administrative Penalty Authority 2. Interim PrimacyAuthority 3.Time Increase forAdoptingFederal

Regulations 4. Examples ofEmergency Circumstances

That Require aPlan forSafe Drinking Water 5. Revision ofPublicWater System

Definition B. Impact ofThese Revisions

1.Executive Order 12866 2. Regulatory FlexibilityAct 3.Paperwork Reduction Act 4. Unfunded Mandates ReformAct 5. Executive Order 13045 Protection of

Children From Environmental Health Risks and Safety Risks 6. Submission toCongress and the General

Accounting Office 7. National Technology Transfer and

Advancement Act 8.Administrative Procedure Act
A. Summary andExplanation of Today's Action

40 CFRpart 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 ofthe Safe Drinking Water Act (SDWA).The Safe Drinking Water Act Amendments of 1996 created an additional requirement for States to obtain and/orretain primacy for the PWSS program. Section 1413(a)(6) requires States to have administrative penalty authority. Today's rule adds aprovision to § 142.10 incorporating thisnew requirement. Because questions have arisen on the meaningofsection 1413(a)(6), today's preamble sets forth EPA's interpretation ofthis section.

The addition ofsection (e) in § 142.12 ofthis rule is also due to the 1996 Amendments. Section 142.12(e) explains that when a State with primacy for allexisting 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 whileEPA makes a final determination on the application.

Additionally, the Agency is making revisions to § 142.10(e) to reflect the 1996 Amendments by addingexamples ofemergency situations and to § 142.12(b) by changingthe time limitation for adopting new or revised Federal regulations. Finally, the Agency is revisingthe definition ofapublic
watersystem inboth 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. Adm inistrativePenaltyAuthority

Section 1413 ofthe 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 oftheir 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 ofany 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 ofStaterequirements that

arebroader in scope than the federal program, or unrelated to the approved program. States musthave the authority to impose administrative penalties on PWSs serving apopulation greater than 10,000 individuals in an amount thatis
notless 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 

## 23362

HeinOnline -- 63 Fed. Reg. 23362 1998

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

amount ofadministrative penalties that may be imposed on a PWS per violation.

StatutoryLangu age

Section 1413 ofthe SDWA provides that a State willhave primary enforcement responsibility for PWSs during anyperiod for which the Administrator determines that the State
meets the requirements ofsection 1413(a) as implemented through EPA regulations. One ofthe 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 ofthe Stateprohibits the adoption ofthe authority) in a maximum amount-

(A) In the case ofa system serving a population ofmore than 10,000, that is
not less than $1,000 per day per violation; and

(B) In the case ofany 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 ofadministrative penalties that may be imposed on a public water system per violation. Interpretation of "In aMaximum Amount * * * That is NotLess Than $1,000 Per Day Per Violation"

The first issue for clarification is the meaning ofrequiring 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 ofstatutory construction, EPA has interpreted the provision as discussed in the followingparagraphs.

The report on Senate Bill (SB)1316 says, in explaining this provision, that States are to adopt administrative penalties ofat least $1,000 per day per violation for large systems. Since the language in the House Bill and in the final version ofthe SDWA amendments is identical to that in SB1316, and there is no additional explanation ofthis language, the report on SB1316 is a helpful indicator ofCongressional 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 thisper day per violation penalty for systems serving

apopulation ofmore 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 apenalty ofat least $1,000 per day per violation.

A State's penalty authority must be "per day per violation." Ifa State has authority for administrative penalties up to a specific dollar amount (in total, or

asper 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. Ifa 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 "perviolation." For example, a State could obtain authority for administrative penalties of$1,000 per day per violation, not to exceed $25,000 foreach violation. IfaPWS in that State had 3 maximum contaminant level violations, each ofwhich lasted a month, the system could be assessed an administrative penalty of $75,000. (This would be calculated asfollows: The PWS had 3 violations at $1,000 per day

x 30 days foreach 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 ofthe smaller systems face special challenges in complying with the requirements ofthe 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 agreat deterrent. In addition, assessing modest penalties often requires less burdensome hearingprocedures and thus can be more efficient. At the same time, however, it must be remembered that a good portion ofthe 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 theiropinion, ensure compliance. The level can be the same as that for the larger systems.
Determination ofState Administrative Penalty Authority

As a part ofthe primacy application review process, EPA will review the State laws and regulations to determine whether the Statehas the requisite administrative penalty authority or whether its constitution prohibits the adoption ofsuch authority. States must submit copies oftheir laws and regulations; States that believe that their constitution prohibits administrative penalty authority must submit acopy of theirconstitution 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 ofthe 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 ofadministrative 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, apenalty policy). In today'srule, 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 useto review and approve State programs will vary based on the circumstances. In cases where the State has adequate administrative penalty authority thatis already part ofan approved primacy program, no formal process under Part 142 is required to approve the program. In situations where either the Statehas adequate administrative penalty authority but itis not part ofan approved primacy program, or where the State administrative penalty authority is not adequate to meet the

new requirement, the State must follow the process forprimacy program revisions in 40 CFR 142.12.

Ifor when itbecomes clear that a State is not going to obtain the required authority, or ifthe Stateis not acting in good faith to obtain the required authority, EPA will seek to begin the primacy withdrawal process under 40 

## 23363

HeinOnline -- 63 Fed. Reg. 23363 1998

### Federal Register/ Vol. 63, No. 81

### /Tuesday, April 28, 1998

### /Rules and Regulations

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

2. Interim PrimacyA 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 underreview. 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 ispromulgated, grants interim primary enforcement authority for anew or revised regulation during the period in which EPA is making a determination with regard to primacy for that new orrevised regulation. This interim enforcement authority begins on the date ofthe primacy application submission or the effective date ofthe

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 forAdoptingFederal Regulations

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

4. ExamplesofEmergency CircumstancesThatRequireaPlan for Safe DrinkingWater

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 ofPublic WaterSystem 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 CFRPart 141. Before the 1996 Amendments, the SDWA defined a PWS

as a system thatprovided 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 addingor 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 ofthe changed definition will not be considered PWSs, subject to SDWA requirements, until afterAugust 5, 1998.
"Service Connection" Exclusions

For systems which only could become PWSs as a result ofthe broadened definition, the Amendments allow certain connections to be excluded, for purposes ofthe definition, if the water supplied by that connection meets any ofthe three criteria enumerated in section 1401(4)(B)(i).

First, aconnection is excluded where the water is used exclusively for purposes other than "residential uses." Residential uses consist ofdrinking, bathing, cooking, or similar uses. Next,

aconnection may be excluded if the State exercising primary enforcement responsibility or the Administrator determines that "alternative water" to achieve the equivalent level ofpublic health protection afforded bythe 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 atthe point ofentry bythe provider, a pass-through entity, or the user to achieve the equivalent level ofprotection 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 arenot considered to be PWSs ifthe system or theresidential

or similar users ofthe system comply with therequirements ofthe alternative water exclusion in section 1401(4)(B)(i)(II) or the treatment exclusion in section 1401(4)(B)(i)(III). Implementation ofthe New PWS Definition

Systems newly subject to SDWA regulations under the amended definition ofa PWS will not be regulated until August 6, 1998, as provided in section 1401(4)(C) ofthe SDWA. States with primary enforcement authority must revise their programs within two years from the effective date ofthisregulation to include waters suppliers that became PWSs only as a result ofthe 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 ofthe new definition and the statutory exclusions.

B. ImpactofThese Revisions

1. Executive Order12866

Under Executive Order 12866, [58 FR 51,735 (October4, 1993)] the Agency must determine whether the regulatory action is "significant" and therefore subject to OMBreview and the requirements ofthe Executive Order. The Order defines "significant regulatory action" as one that is likely
to result in a rule thatmay:

(a) Have an annual effect on the economy of$100 million or more or adversely affect in a material way the economy, a sector ofthe 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

orplanned by another agency;

(c) Materially alterthe budgetary impact ofentitlements, grants, user fees,

or loan programs or therights and obligations ofrecipients thereof; or

(d) Raise novel legal or policy issues arising out oflegal mandates, the President's priorities, or the principles
set forth in theExecutive Order.

It has been determined that this rule is not a "significant regulatory action" under the terms ofExecutive Order 12866 and is therefore not subject to OMBreview.

2. RegulatoryFlexibilityAct

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 aregulatory flexibility analysis ofany significant impact the rule will 

## 23364

HeinOnline -- 63 Fed. Reg. 23364 1998

### Federal Register/ Vol. 63, No. 81

### /Tuesday, April 28, 1998

### /Rules and Regulations

have on a substantial number ofsmall 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. PaperworkReductionAct

The information collection requirements in this rule will be submitted for approval to the Office of Management and Budget (OMB) under the PaperworkReductionAct, 44 U.S.C. 3501 etseq.An Information Collection Request (ICR) document has been prepared by EPA (ICRNo. 1836.01) and

acopy 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/orretain 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 oftheir legislation authorizing the penalty authority and adescription of their authority for administrative penalties that will ensure adequate compliance ofsystems 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 oftherelevant provision ofthe 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 willrequire 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 ofapproximately 12hours and 26 minutes by each ofthe 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 bypersons 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 acollection 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 ofinformation unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFRPart 9 and 48 CFR Chapter 15.

Send comments on the Agency's need for this information, the accuracy ofthe provided burden estimates, and any suggested methods for minimizing respondent burden, including through the useofautomated 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 ofManagement and Budget, 725 17th Street,N.W.; Washington, DC 20503; marked "Attention: Desk Officer 

### for EPA." Review will bein accordance with theprocedures in 5CFR 1320.10. Comments are requested by June 29, 1998. Include the ICRnumber in any correspondence.

4. UnfundedMandatesReform Actand Executive Order12875

Title II ofthe Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of theirregulatory actions on State, local, and tribal governments and the private
sector. Under section 202 ofthe UMRA, EPA generally mustprepare awritten 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 theprivate sector, of$100 million

or more in any one year. Before promulgating an EPArule forwhich a written statement is needed, section 205 ofthe UMRA generally requires EPAto identify and consider areasonable number ofregulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the objectives ofthe rule. The provisions ofsection 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 ifthe Administrator publishes with the final rule an explanation why that alternative

was not adopted. Before EPA establishes any regulatory requirements that may significantly oruniquely affect small governments, including tribal governments, itmust have developed under section 203 ofthe UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials ofaffected small governments to have meaningful and timely input in the development ofEPAregulatory 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 (underthe regulatory provisions ofTitle II ofthe 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 avoluntary federalprogram. The requirements under section 1413(a) ofthe SDWA are onlymandatory ifa State chooses to have primary enforcement responsibility for PWSs. Additionally, today'srule implements requirements specifically setforth bythe Congress in sections 1401 and 1413 ofthe SDWA without the exercise ofany discretion by EPA.

In any event, even if this rule were notexcluded from the definition of "Federal intergovernmental mandate," EPA has determined that this rule does
notcontain a Federal mandate that may result in expenditures of$100 million or

more for State, local, and tribal 

## 23365

HeinOnline -- 63 Fed. Reg. 23365 1998

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

governments, in the aggregate, or the private sector in any one year.

Thus, today's rule is not subject to the requirements ofsections 202 and 205 of the UMRA.

Additionally, EPAhas determined that thisrule 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 (Enhancingthe Intergovernmental Partnership).

5. Executive Order13045-Protection of ChildrenFromEnvironmentalHealth Risks andSafety Risks

Today's action is not subject to Executive Order 13045 [62FR 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 affectingchildren.
6.Submission to Congressandthe General Accounting Office
The Congressional Review Act, (5 U.S.C. 801 etseq.) as added by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally provides that before arule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House ofthe Congress and to the Comptroller General ofthe 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 ofreasons therefore in the rule) that notice and publicprocedure thereon are impracticable, unnecessary

or contrary to thepublic 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., EPAhas made such a good cause finding for thisrule, including the

reasons therefore, and established an effective date ofApril 28, 1998. EPA will submit areport containing this rule and other required information to the U.S. Senate, theU.S. House of Representatives, and the Comptroller General ofthe United States Office prior
to publication ofthe rule in theFederal Register. This rule is not a "major rule"

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

7.NationalTechnology Transferand AdvancementAct

Under section 12(d) ofthe 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 ofthe reasons for not using such standards. Because this rule does
not involve or require the use ofany technical standards, EPA does not believe that this Act is applicable to this rule. Moreover, EPA is unaware ofany 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.AdministrativeProcedure Act

Because this rule merely codifies and interprets a statute, the amended SDWA, it is an "interpretative rule." As

aresult, itis exempt from the notice and
comment requirements for rulemakings under section 553 ofthe APA (See section 553(b)(3)(A)). In addition, because thisrule 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 ofthisrule 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. ListofSubjects in 40 CFRParts 141 and 142

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

Dated:April 17, 1998. CarolM.Browner, Administrator.

For the reasons set forth in the preamble, the Environmental Protection Agency amends 40 CFRParts 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: 42U.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 byrevising the definitions ofnon-community water system andpublicwatersystem and adding the following definitions in alphabetical order.
§141.2 Definitions.

Non-comm unity watersystem means
apublic 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)."

Publicwatersystem or PWS means a system forthe 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

orregularly serves an average ofatleast twenty-five individuals daily at least 60 days out ofthe year. Such term includes: any collection, treatment, storage, and distribution facilities under control ofthe operator ofsuch 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 notinclude 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 publicwatersystem, does
notinclude aconnection to a system that delivers water by aconstructed conveyance other than apipe if: 

## 23366

HeinOnline -- 63 Fed. Reg. 23366 1998

### Federal Register/ Vol. 63, No. 81

### /Tuesday, April 28, 1998

### /Rules and Regulations

(1) The water is used exclusively for purposes other than residential uses (consistingofdrinking, bathing, and cooking, or other similar uses);

(2) The State determines that alternative waterto achieve the equivalent level ofpublic health protection provided by the applicable national primary drinking water regulation isprovided 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 ofentry by theprovider, apassthrough entity, or the user to achieve the equivalent level ofprotection provided by the applicable national primary drinking water regulations.
* * * * *

Special irrigation districtmeans 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 theresidential or similar users ofthe 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:42U.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 byrevising the definition ofpublicwatersystem and addingthe following definitions in alphabetical order. 

### §142.2 Definitions.

* * * * *

Publicwatersystem or PWS means a system for the provision to the public of water forhuman 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 ofat least twenty-five individuals daily at least 60 days out ofthe year. Such term includes:

Any collection, treatment, storage, and distribution facilities under control ofthe operator ofsuch 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 publicwatersystem, does
not include aconnection to a system that delivers water by aconstructed conveyance other than apipe if: (1) The water is used exclusively for purposes other than residential uses (consistingofdrinking, bathing, and cooking, or other similar uses); (2) The Administrator or the State exercising primary enforcement responsibility for public water systems, determines that alternative waterto achieve the equivalent level ofpublic health protection provided bythe 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 bathingis centrally treated

or treated atthe point ofentryby 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 irrigationdistrictmeans an irrigation districtin existence prior to May 18, 1994 that provides primarily agricultural service through apiped
water system with only incidental residential or similar use where the system or the residential or similar users ofthe system comply with the exclusion provisions in section 1401(4)(B)(i)(II) or (III).
* * * * *

3.In §142.10 byrevising paragraph (e), redesignating paragraph (f) as paragraph (g) and addingparagraph (f) to read as follows:
§ 142.10 Requirements foradetermination 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 ofthe State prohibits the adoption ofsuch authority. For public water systems serving a population ofmore than 10,000 individuals, States must have the authority to impose apenalty ofat least $1,000 per day per violation. Forpublic water systems serving apopulation 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 longas criteria in paragraph (f)(1) ofthis section are met, States may establish amaximum administrative penalty per violation that may be assessed on a public water system.
* * * * *

4. In § 142.11 byredesignating paragraph (a)(6) asparagraph (a)(7) and adding new paragraph (a)(6) to read as follows:
§142.11 Initialdetermination ofprimary enforcement responsibility.

(a) * * * (6)(i) A copy ofthe State statutory and regulatory provisions authorizing the executive branch ofthe State government to impose an administrative penalty on all public water systems, and

abriefdescription ofthe 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 ofthe State government from assessing any penalty, the State shall submit a copy ofthe 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 asfollows: §142.12 Revision ofState programs.
* * * * *

(b)* * * (1) Complete and final State requests for approval ofprogram revisions to adopt new or revised EPAregulations
mustbe submitted to the Administrator
notlater than 2 years after promulgation ofthe new or revised EPAregulations, unless the State requests an extension and the Administrator has approved the request pursuant to paragraph (b)(2) of this section. Ifthe State expects to submit a final State request for approval ofa program revision to EPA more than 2years after promulgation ofthe new or revised EPAregulations, the State shall request an extension ofthe deadline before the expiration ofthe 2-year period.
* * * * *

(e)Interimprimaryenforcement 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 

## 23367

HeinOnline -- 63 Fed. Reg. 23367 1998

### 23368 Federal Register/Vol. 63, No. 81/Tuesday, April 28, 1998/Rules and Regulations

with respect toeach new orrevised national drinking waterregulation that it adopts beginningwhen thenew or revised State regulation becomes effective orwhen the complete primacy revision application is submitted to the Administrator, whichever islater, and shall end when the Administrator approves ordisapproves the State's revised primacyprogram. [FRDoc. 98 11260 Filed 4 27 98;8:45 am]

BILLING CODE 6560-50-P

HeinOnline -- 63 Fed. Reg. 23368 1998