19438 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

letters was accompanied by a petition

with 189 signatures of individuals

recommending the NPS designate

Honokohau beach as clothing optional.

This response persuaded the park to

move forward with comment

rulemaking.

Public Participation

It is the policy of the Department of

the Interior, whenever practicable, to

afford the public an opportunity to

participate in the rulemaking process.

Accordingly, interested persons may

submit written comments regarding this

proposed rule to the address noted at

the beginning of this rulemaking. The

NPS will review these comments, as

well as the comments received from the

previous public meetings concerning

the future use of Honokohau beach, and

consider making changes to the rule

based upon an analysis of the

comments.

Drafting Information

The principal authors of this

proposed rulemaking are James Martin,

Superintendent, Hawaii Volcanoes

National Park; Bryan Harry,

Superintendent, National Park Service,

Pacific Island Support Office; Laura

Carter-Schuster, Resource Manager,

Kaloko-Honokohau National Historical

Park; and Dennis Burnett, Washington

Office of Ranger Activities, National

Park Service.

Paperwork Reduction Act

This rulemaking does not contain

collections of information requiring

approval by the Office of Management

and Budget under the Paperwork

Reduction Act of 1995.

Compliance With Other Laws

This rule was not subject to Office of

Management and Budget review under

Executive Order 12866. The Department

of the Interior determined that this

document will not have a significant

economic effect on a substantial number

of small entities under Regulatory

Flexibility Act (5 U.S.C. 601 et seq). The

economic effects of this rulemaking are

local in nature and negligible in scope.

The Service has determined and

certifies pursuant to the Unfounded

Mandates Reform Act, 2 U.S.C. 1502 et

seq., that this proposed rule will not

impose a cost of $100 million or more

in any given year on local, State, or

tribal governments or private entities.

The Department has determined that

this rule meets the applicable standards

provided in Section 3(a) and 3(b)(2) of

Executive Order 12988.

This rule is not a major rule under the

Congressional review provisions of the

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 804(2)).

The NPS has determined that this

rulemaking will not have a significant

effect on the quality of the human

environment, health and safety because

it is not expected to:

(a) Increase public use to the extent of

compromising the nature and character of the

area or causing physical damage to it;

(b) Introduce incompatible uses which

compromise the nature and characteristics of

the area or cause physical damage to it;

(c) Conflict with adjacent ownership or

land uses; or

(d) Cause a nuisance to adjacent owners or

occupants.

Based on this determination, this

rulemaking is categorically excluded

from the procedural requirements of the

National Environmental Policy Act

(NEPA) by Departmental guidelines in

516 DM 6 (49 FR 21438). As such,

neither an Environmental Assessment

nor an Environmental Impact Statement

has been prepared specifically for this

regulation. However, an EIS was issued

in 1992 along with the General

Management Plan for the management

and development of Kaloko-Honokohau

National Historical Park under the

provisions of NEPA.

List of Subjects in 36 CFR Part 7

District of Columbia, National parks,

Reporting and recordkeeping

requirements.

In consideration of the foregoing, the

NPS proposes to amend 36 CFR Chapter

I as follows:

PART 7—SPECIAL REGULATIONS,

AREAS OF THE NATIONAL PARK

SYSTEM

1. The authority citation for Part 7

continues to read as follows:

Authority: 16 U.S.C. 1, 3, 9a, 460(q),

462(k); Sec. 7.96 also issued under D.C. Code

8–137(1981) and D.C. Code 40–721(1981).

2. New Section 7.87 is added to read

as follows:

§ 7.87 Kaloko-Honokohau National

Historical Park.

Public nudity, including public nude

bathing, by any person on Federal land

or water within the boundaries of

Kaloko-Honokohau National Historical

Park is prohibited. Public nudity is a

person’s failure to cover with a fully

opaque covering that person’s own

genitals, pubic areas, rectal area or

female breast below a point immediately

above the top of the areola when in a

public place. Public place is any area of

Federal land or water within the

Historical Park, except the enclosed

portions of restrooms or other structures

designed for privacy or similar

purposes. This section shall not apply to

a person under 10 years of age.

Dated: January 30, 1998.

Donald J. Barry,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 98–10322 Filed 4–17–98; 8:45 am]

BILLING CODE 4310–70–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 142

[FRL–5999–5]

RIN 2020–AA37

Revision of Existing Variance and

Exemption Regulations to Comply

With Requirements of the Safe

Drinking Water Act

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The Agency is proposing to

revise the existing regulations regarding

Safe Drinking Water Act variances and

exemptions. These revisions are based

on the 1996 Safe Drinking Water Act

Amendments. A new subpart, Subpart

K, created to implement a new section

in the Amendments, describes

procedures and conditions under which

a primacy State/Tribe (please note that

throughout this preamble and proposed

rule, the term ‘‘State’’ has the same

definition as currently exists in 40 CFR

141.2, i.e., ‘‘State means the agency of

the State or Tribal government which

has jurisdiction over public water

systems . . .’’) or the Administrator may

issue small system variances to public

water systems serving less than 10,000

persons. This rule-making is intended to

provide regulatory relief to all public

water systems, particularly small

systems.

DATES: Written comments must be

received by midnight May 20, 1998.

ADDRESSES: Written comments should

be submitted to: W–97–26 Comment

Clerk, Water Docket (mailcode

MC4101), Environmental Protection

Agency, 401 M Street, S.W.,

Washington, D.C., 20460.

The record is available for inspection

at the Water Docket, Washington, D.C.,

from 9 a.m. to 4 p.m., Monday through

Friday, excluding legal holidays. For

access to docket materials, please call

(202)–260–3027 to schedule an

appointment.

FOR FURTHER INFORMATION CONTACT:

Andrew J. Hudock, Office of
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19439

Enforcement and Compliance

Assurance, Office of Regulatory

Enforcement, Water Enforcement

Division (Mailcode: 2243–A),

Environmental Protection Agency, 401

M Street, S.W., Washington, D.C.,

20460. Phone: (202)–564–6032.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority

A. Overview

B. New Small System Variances

C. General Variances

D. Exemptions

II. Consultation With Public Water Systems,

State, Tribal and Local Governments,

Environmental Groups, and Public

Interest Groups

III. Discussion of Proposed Rule

A. Purpose and Applicability

B. Effective Date

C. Primacy Requirements

D. Rationale for New Subpart

E. Rationale for Format of New Subpart

F. General Provisions in Proposed Subpart

K

G. Small System Variance Requirements

1. Section 142.306. Compliance Options

Analysis

2. Section 142.306(b). Documentation of

State Considerations in Reviewing Small

System Variances

3. Section 142.306(b)(2). Affordability

Criteria

4. Section 142.306(b)(3). Availability of

Approved Variance Technologies

5. Section 142.306(b)(5). Adequate

Protection of Public Health

6. Section 142.307. Terms and Conditions

of Small System Variances

7. Section 142.307(c)(4). Compliance

Period for Small System Variances

8. Sections 142.308–142.310. Public

Participation Requirements for Issuance

of a Small System Variance

H. Sections 142.311 and 142.312. Bases for

Administrator’s Objections to StateProposed Small System Variances

I. Section 142.313. Bases for

Administrator’s Review of State Small

System Variance Program

J. General Variances: Time Limitation

K. Relationship of Exemptions and Small

System Variances

L. State Revolving Fund Linkage to

Exemptions

M. Exemptions: Renewals for Small

Systems

IV. Cost of Rule

V. Other Administrative Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Unfunded Mandates Reform Act and

Executive Order 12875

E. Enhancing Intergovernmental

Partnerships

F. Protection of Children and

Environmental Justice

G. National Technology Transfer and

Advancement Act

VI. Request for Public Comments

Regulated Persons

Potentially regulated persons are

public water systems (PWSs).

Category Example of regulated entities

Industry ............................................................... May include privately-owned utilities, ancillary water systems, homeowner’s associations, mobile home parks, Municipalities; County Governments; Water districts; Water and Sewer Authorities.

State/Local/Tribal governments .......................... May include publicly-owned PWS’s, municipalities, county governments, water districts, State

drinking water programs.

Federal government ............................................ Federally-owned facilities.

This table is not intended to be

exhaustive, but rather it provides a

guide for readers regarding entities

likely to be affected by this action. This

table lists the types of entities that the

Agency is now aware could potentially

be affected by this action. Other types of

entities not listed in this table could

also be affected. If you have questions

regarding the applicability of this action

to a particular entity, consult the person

listed in the preceding section FOR

FURTHER INFORMATION CONTACT.

I. Statutory Authority

Sections 115–117 of the Safe Drinking

Water Act (SDWA) Amendments of

1996 (Pub. L. 104–182), enacted August

6, 1996, amended sections 1415 and

1416 of the Act (42 U.S.C. 300g–4,

300g–5) concerning variances and

exemptions.

A. Overview

As provided under the Act, under

certain conditions, variances are

available to public water systems that

cannot (due to source water quality, or,

in the case of small systems,

affordability) comply with the national

primary drinking water standards.

Variances generally allow a system to

comply with less stringent, but still

protective, standards based on a

specified technology available to the

system. The duration of the variance

generally coincides with the life of the

technology. An exemption, on the other

hand, is intended to allow a system with

compelling circumstances an extension

of time before the system must comply

with applicable Safe Drinking Water Act

requirements. An exemption is limited

to three years after the otherwise

applicable compliance date (although

extensions up to a total of six additional

years may be available to small systems

under certain conditions).

B. New Small System Variances

Section 1415(e) establishes new

provisions by which a small public

water system may obtain a variance

from complying with National Primary

Drinking Water Regulations (NPDWR)

under certain specified conditions.

Section 1415(e)(1) identifies, through

service population, the size of systems

which may seek such small system

variances. Specifically, this section

limits such small system variances to

public water systems serving 3,300 or

fewer persons, and, with the approval of

the Administrator, to public water

systems serving more than 3,300

persons but less than 10,000 persons.

Section 1415(e)(6) states that such

small system variances are not available

for (1) any maximum contaminant level

(MCL) or treatment techniques for a

contaminant for which a NPDWR was

promulgated prior to January 1, 1986, or

(2) a NPDWR for a microbial

contaminant or an indicator or

treatment technique for a microbial

contaminant.

Sections 1415(e)(2) and (3) identify

the conditions under which small

systems may receive such a variance.

Section 1415(e)(2)(A) states that one

such condition is that a variance

technology which has been identified by

the Administrator under section

1412(b)(15) is applicable to the size and

source water quality conditions of the

public water system. In addition, under

section 1415(e)(2)(B), the system is

required to install, operate, and

maintain such treatment technology,

treatment technique, or other means, in

accordance with guidance or regulations

issued by the Administrator. Section

1415(e)(2)(C) indicates that the small

system variance is also contingent upon

whether a State/Tribe exercising

primary enforcement responsibility (or

the Agency, where a State/Tribe does

not have primacy) determines that

certain conditions are met, namely that

(1) the system cannot afford, in

accordance with State/Tribal (or EPA)

affordability criteria, to comply through
19440 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

treatment, alternative sources of water

supplies, or restructuring and

consolidation, and (2) the variance will

ensure adequate protection of human

health (section 1415(e)(3)).

Section 1415(e)(4) describes the

maximum length of schedules to

comply with the conditions of such

variances (three years), and possible

additional time (two additional years) to

achieve compliance with the variance,

under certain conditions.

Section 1415(e)(5) requires the

Administrator or primacy State/Tribe to

review each variance not less than every

five years after the compliance date

established in the variance to ensure

that the system remains eligible for the

variance and is conforming to each

condition of the variance.

Section 1415(e)(7)(A) requires the

Administrator to promulgate, within

two years of enactment, regulations for

variances to be granted under the newly

established program. These regulations

must specify, at a minimum, procedures

to grant and deny variances, including

public participation requirements,

requirements for proper installation and

maintenance of approved variance

technology and sufficient financial and

technical capability to operate such

treatment, eligibility requirements for a

variance for each NPDWR, and

information requirements for variance

applications. Section 1415(e)(7)(B)

requires the Administrator to publish

information by February 6, 1998, to

assist primacy States/Tribes in

developing affordability criteria and

requires State/Tribal review of such

criteria not less than every five years.

Section 1415(e)(8)(A) requires the

Administrator to periodically review the

primacy State’s/Tribe’s variance

program to determine whether variances

granted by the State/Tribe comply with

the requirements of the Act. If the

Administrator determines that the

variances granted by the primacy State/

Tribe are not in compliance with the

State’s/Tribe’s affordability criteria and

the requirements of the Act, section

1415(e)(8)(B) requires the Administrator

to notify the State in writing of the

deficiencies and to make public the

determination.

Section 1415(e)(9) requires a primacy

State/Tribe, which is proposing to grant

a small system variance to a public

water system serving more than 3,300

and fewer than 10,000 persons, to

submit that variance to the

Administrator for review and approval

prior to issuance. The Administrator is

required to approve or disapprove the

variance within 90 days. If the

Administrator disapproves of the

variance, the Administrator is required

to notify the State in writing of the

reasons for such disapproval. The State

may then revise and resubmit the

modified variance for approval by the

Administrator.

Section 1415(e)(10) addresses

objections to small system variances.

Section 1415(e)(10)(A) states that the

Administrator may review and object to

any variance proposed to be granted by

the State/Tribe, if such objection is

communicated to the State/Tribe not

later than 90 days after the State/Tribe

proposes to grant the variance. Such

objections must be communicated in

writing, identifying both the basis for

the objection and proposed

modifications. The State/Tribe shall

then make the recommended

modifications or respond in writing to

each objection. If the State/Tribe

proceeds to issue the variance without

resolving the Administrator’s concerns,

the Administrator may overturn the

State/Tribal decision to grant the

variance if the State/Tribal decision

does not comply with the Act or

regulations.

Section 1415(e)(10)(B) addresses

objections based on petitions to the

Administrator by consumers. Under this

section, not later than 30 days after a

primacy State/Tribe proposes to grant a

small system variance, any person

served by the public water system may

petition the Administrator to object to

the granting of the variance. The

Administrator is required to respond to

the petition and determine whether to

object to the variance not later than 60

days after the receipt of the petition.

Also regarding objections to small

system variances, section 1415(e)(10)(C)

states that no variance shall be granted

by a State/Tribe until the later of the

following: (1) 90 days after the State/

Tribe proposes to grant a variance, or (2)

following the Administrator’s objection

to a variance, the date on which the

State/Tribe makes the recommended

modifications or responds in writing to

each objection.

C. General Variances

In the 1996 Amendments to the

SDWA, Congress modified the language

governing general variances (i.e., those

variances available to systems of any

size). Under the newly enacted section

1415(a)(1)(A), a variance may be granted

on the condition that the system install

the best technology, treatment

techniques, or other means, which the

Administrator finds are available. This

new modification changes the previous

requirement that mandated that the

system install variance technologies

before a variance could be issued. In the

new Amendments, before a variance can

be issued, Congress also requires

primacy States/Tribes to conduct an

evaluation that satisfies the State/Tribe

that alternative sources of water are not

reasonably available to a system.

D. Exemptions

In a major change in the exemption

provisions of the SDWA, section

1416(b)(2)(A) deleted provisions which

limited an exemption to 12 months,

subject to a three-year extension. The

new provisions require the schedule for

an exemption to require compliance

with each contaminant level and

treatment technique for which the

exemption was granted as soon as

practicable but not later than three years

after the otherwise applicable

compliance date established in section

1412(b)(10).

The only exception to this exemption

time period is in section 1416(b)(2)(C)

for small systems serving less than 3,300

persons, under certain specified

conditions, for which extensions may be

renewed for one or more additional twoyear periods, but not to exceed a total

of six years.

The Amendments also modified

section 1416 of the Act to specify a

wider set of factors that need to be

considered before an exemption is

granted from the requirements of the

NPDWR. Prior to the 1996 amendments,

section 1416 authorized a State that has

primary enforcement responsibility

under the SDWA (or EPA where the

State/Tribe does not have such primacy)

to exempt a public water system from

the NPDWR if (1) the system could not

comply with the regulation and (2) no

unreasonable risk to public health

would result from the exemption.

Section 1416(a) now requires the State/

Tribe, in determining whether an

exemption may be granted, to also

consider whether the public water

system is a ‘‘disadvantaged community’’

and whether management or

restructuring changes can be made that

will result in compliance or, if

compliance cannot be achieved, would

improve the quality of the drinking

water. Section 1416(a)(4) also requires a

State/Tribe to consider measures to

develop an alternative source of water

supply. Section 1416(b)(2)(D) states that

a small system that has received a

variance under section 1415(e) cannot

receive an exemption under section

1416.

II. Consultation with Public Water

Systems, State, Tribal and Local

Governments, Environmental Groups,

and Public Interest Groups

As required under section 1415 of the

SDWA, as amended, the Agency has
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19441

consulted with State representatives, as

well as a broad range of other interested

parties, in the development of this

proposed rule.

On September 16, 1997, early in the

regulatory development process, EPA

held its first stakeholders meeting in

Washington, D.C., to discuss the

amendments as they apply to Safe

Drinking Water Act variances and

exemptions. Participants in this daylong meeting included industry

representatives, State representatives,

and representatives of environmental

groups. This meeting was designed

specifically to solicit views and ideas

from a number of interested

stakeholders at a very early stage in the

process, prior to development of

internal drafts. A summary of this

meeting was subsequently provided to

attendees, as well as to interested

persons who were unable to attend.

On September 17, 1997, as a followup to the previous day’s meeting, the

Agency met with a representative of the

Association of State Drinking Water

Administrators (ASDWA) and a State

representative to discuss

implementation of the 1996 variances

and exemptions provisions. The

stakeholders provided early comments

on possible procedures to obtain a small

system variance, including at what

point in the process the public water

system or the State should notify the

public.

On September 30, 1997, in

conjunction with the National Rural

Water Association national conference

in Indianapolis, Indiana, the Agency

met with community water system

operators and industry representatives

to further discuss revisions to the

variances and exemptions regulations.

Discussion during this meeting focused

primarily on (1) the extent to which

public water systems should be

expected to assemble information when

applying for a variance, (2) public

notification associated with the

variance, and (3) required terms and

conditions of small system variances.

On October 20, 1997, in conjunction

with the ASDWA national meeting in

Savannah, GA, the Agency presented a

summary of the draft variance and

exemption regulations. At that time, all

States were given the opportunity to

participate in a discussion regarding the

content of the regulations.

On October 24, 1997, the Agency met

with representatives of environmental

and consumer groups to discuss their

perspective on possible revisions to the

variances and exemptions regulations.

Discussion during this meeting focused

primarily on public participation and

notification concerns, variance

eligibility, and criteria for reviewing and

granting small system variances.

Although the Agency has not

consulted directly with representatives

of Tribal governments in the

development of this proposal, the

Agency will make efforts to do so, as

appropriate, during the comment

period. The rule being proposed today

has been developed in consultation

with, and takes into consideration

suggestions from, public water systems,

environmental groups, public interest

groups, the States, and other interested

parties.

III. Discussion of Proposed Rule

A. Purpose and Applicability

Through this proposed rulemaking,

the Agency seeks to codify the 1996

SDWA amendments addressing general

variances and exemptions provisions, as

well as providing a new subpart which

addresses the procedures for issuance of

small system variances. This proposed

rule will be applicable to all eligible

public water systems and primacy

agencies (States, Tribes, and the

Agency).

B. Effective Date

The effective date of this rule will be

one month after promulgation.

C. Primacy Requirements

Primacy States/Tribes, if they choose

to issue variances and exemptions, are

required under section 1413(a)(4) of the

Safe Drinking Water Act to issue such

variances and exemptions under

conditions and in a manner which is not

less stringent than the variance and

exemption provisions of the Act. In

addition, section 1415(e)(7)(A) of the

Safe Drinking Water Act requires the

Administrator to promulgate regulations

that shall, among other things, specify

procedures to be used by the

Administrator or the State to grant or

deny variances. This statutory language

suggests that it was the intent of

Congress that States adopt procedures

no less stringent than those identified in

this proposed rule for issuance of small

system variances. Therefore, the Agency

is proposing to change § 142.10(d) of the

regulations accordingly. Thus, if a

primacy State wishes to issue small

system variances, it must first enact

State regulations which are no less

stringent than the requirements in

section 1415(e) of the Act and as

embodied in this proposed rule, and

seek EPA approval of such regulations

by submitting a program revision

package.

D. Rationale for New Subpart

This proposed rule creates Subpart K,

which addresses the issuance of small

system variances. This separate subpart

was created to reflect the rather

substantial statutory language in section

1415(e) of the Act, which establishes

new provisions by which a small public

water system may obtain a variance

from complying with National Primary

Drinking Water Regulations (NPDWR)

under certain specified conditions. The

Agency’s decision to establish this

separate subpart in the regulations is

intended to provide clear and concise

descriptions of the new regulatory

requirements for small public water

systems in one location in the

regulations. The alternative of

interspersing small system variance

requirements within the existing

regulations for variances could easily

become too confusing when trying to

identify and follow small system

requirements.

E. Rationale for Format of New Subpart

The Agency has attempted to draft

Subpart K of these proposed regulations

in a question-and-answer format in

‘‘plain English’’, in accordance with

current Agency policy for regulation

development. The intent of ‘‘plain

English’’ is to produce rules which are

clear, concise, straight-forward,

understandable, and enforceable,

without extensive ‘‘legalese’’. This effort

to use ‘‘plain English’’ is not just a

Federal initiative; over half of the States

now have legislative drafting manuals

recommending plain English principles.

F. General Provisions in Proposed

Subpart K

Sections 142.301–142.305 of the

proposed small system variance

regulations essentially codify the

statutory provisions governing who can

apply for, and who can grant, these

variances. One of these provisions

(§ 142.304), however, requires some

explanation.

For small system variances, section

1415(e)(6) of the Safe Drinking Water

Act states that such variances are not

available for (1) any maximum

contaminant level (MCL) or treatment

technique for a contaminant for which

a NPDWR was promulgated prior to

January 1, 1986, or (2) a NPDWR for a

microbial contaminant or an indicator

or treatment technique for microbial

contaminant. As a result, the Agency

will not be listing small system variance

technologies for microbial

contaminants, and the proposed rule

(§ 142.304) prohibits the primacy agency
19442 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

from granting a variance for a microbial

contaminant.

Similarly, the Agency will not be

listing any variance technology for an

MCL or treatment technique for a

contaminant for which a NPDWR was

promulgated prior to January 1, 1986 or

allowing any variances for such

contaminants (see § 142.304). With

respect to this latter category, however,

the scope of the statutory prohibition is

somewhat ambiguous. The Agency must

consider whether Congress intended

that the prohibition apply to a

contaminant for which an MCL was

established prior to 1986, even if

subsequently revised, or whether the

prohibition only attaches to the pre1986 regulation itself (and thus would

not apply to any future regulations for

a contaminant), or whether the

prohibition attaches to the pre-1986

level at which a contaminant was

regulated (but not to more stringent

levels in future regulations). The

statutory language could be amenable to

any of the three interpretations, and

while the legislative history for this

provision provides conflicting

explanations (cf. Senate Report 104–169

at 55–56 with House Report 104–632 at

39), there is no explanation of the policy

rationale for any particular

interpretation.

The Agency surmises that the intent

behind this provision is to prohibit a

public water system from obtaining a

variance for a contaminant for which

compliance should have been achieved

long ago. At the same time, the Agency

does not believe that this rationale

applies where the Agency revises a pre1986 regulation to make it more

stringent. As a result, the Agency

interprets section 1415(e)(6)(A)

prohibition to apply to the level at

which any contaminant was regulated

before 1986; therefore, variances are not

available for systems above the pre-1986

level even if subsequently revised. (Note

that several of the pre-1986 levels were

interim levels and have already been

revised.) However, if the Agency revises

a pre-1986 level and makes it more

stringent (i.e., makes the MCL lower),

then a variance would be available for

that contaminant, but only up to the

pre-1986 MCL. The Agency requests

comment on this approach and statutory

analysis.

G. Small System Variance Requirements

Sections 142.306–142.310 of the

proposed rule establish the conditions

under which the primacy agency can

grant small system variances. The

Agency has attempted in the proposed

rule to provide flexibility in the process

of applying and reviewing requests for

small system variances. For example,

the Agency has not specified any

particular form of a variance application

or who (the system or the State) needs

to provide the relevant information;

rather, the Agency has only specified

that the information must be sufficient

for the primacy agency to make certain

findings and that those findings are

documented in writing. Additional

rationale for several of the provisions is

discussed below.

1. Section 142.306—Compliance

Options Analysis

Sections 1415(e)(1)–(3) of the Act

identify the conditions under which

small systems may receive a small

system variance. In the proposed rule,

§ 142.306(b) codifies these conditions

and includes concepts related to the

State Capacity Development Strategy.

The compliance options analysis is an

integral element of sections 1415 and

1416 of the Act, as well as under the

proposed rule at § 142.306(b)(2). Similar

in concept to capacity development, a

compliance options analysis can allow

the State to consider the underlying

reasons for noncompliance, and what

options are available to the system to

return to compliance for the long term.

Under the Act, such options include

some form of treatment, development of

an alternative source, or management

restructuring or consolidation with a

nearby system. States may wish to

include a compliance options analysis

as part of their capacity development

strategy to address the available options

for noncompliant public water system to

return to compliance.

Management changes which could be

considered by the State in performing

such a compliance options analysis

include financial management changes,

the appointment of a State-certified

operator under the State’s Operator

Certification program, contractual

agreements for a more efficient and

capable public water system based on

joint operation, etc.

The 1996 Amendments to the Safe

Drinking Water Act place strong

emphasis on technical, managerial, and

financial capacity as integral

components of the implementation

strategies of the Act. There is strong

statutory linkage between section 1420

of the Act (the capacity development

provisions), and section 1415 (the

variances and exemptions provisions),

and the Agency has attempted to reflect

this linkage in § 142.306(b) of the

proposed rule.

Section 1415(e)(7)(A)(ii) of the Act

states that today’s proposed rule must

include requirements concerning the

technical and financial capability to

operate and maintain a small system

variance technology. Therefore, under

proposed § 142.306(b)(4), a State or the

Agency must find that a small system

has the technical and financial capacity

to operate a variance technology before

granting a small system variance.

However, the Agency recognizes that

there may be instances in which a small

system is otherwise eligible for a

variance, but lacks the technical and

financial capability to operate the

variance technology. Since enhancing

technical and financial capacity of

public water systems will likely be

dominant goals in State capacity

development strategies, a State may

wish to focus elements of its capacity

development strategy to help systems in

such a situation develop the technical

and financial ability to operate a small

systems variance technology.

Furthermore, under section 1420 of

the Act, the State could face the

possibility of Drinking Water State

Revolving Fund withholding unless,

under the capacity development strategy

in section 1420(c) of the Act, the State

develops a strategy to help systems

enter and remain in compliance with

National Primary Drinking Water

Regulations (NPDWRs) by enhancing

their technical, financial, and

managerial capacity to comply.

Additional considerations and

conditions related to the protection of

public health are addressed in sections

III.G.6 and V.F. of this preamble.

2. Section 142.306(b)—Documentation

of State Considerations in Reviewing

Small System Variances

The proposed regulations require that

States document their findings

regarding a small system’s eligibility for

a small system variance. Where the

State does not have primary

enforcement responsibility under

section 1413 of the Safe Drinking Water

Act, the Agency will document its

findings for the record, if it grants a

small system variance. Such

documentation fulfills many goals.

Documentation of small system

variance findings, as required in

§ 142.306 of the proposed rule, serves as

a written record of decision which the

public can review in preparation for the

required public hearing or in

preparation of a petition to the

Administrator. In addition, a summary

of the findings and the bases for such

findings should be included in the

required public notices associated with

the proposal of such small system

variances.

Sufficient documentation of the

State’s findings regarding a system’s

eligibility for a small system variance
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19443

will also be necessary for the Agency’s

periodic review of State-issued

variances, the Agency’s approval of

variances issued to systems serving

between 3,300 and 10,000 persons, and

the Agency’s review of a petition to

object to a variance. Where adequate

documentation of findings is not

available, the Agency may have to

summarily overturn, reject, or object to

a variance.

Documentation required in the

proposed rule must indicate not only

that a certain factor listed in § 142.306

of the proposed regulations was

considered, but must also include the

rationale for decisions by the State

regarding each of the required findings,

as well as the underlying facts

supporting that decision.

3. Section 142.306(b)(2)—Affordability

Criteria

Section 142.306(b)(2) of the proposed

rule codifies the statutory requirement

that States undertake a compliance

options analysis in accordance with the

State’s own affordability criteria.

Section 1415(e)(7)(B) of the 1996 Safe

Drinking Water Act, as amended,

requires the Agency to publish, within

eighteen months of the Act’s enactment,

information to assist the States in

formulating affordability criteria.

According to the Act, this information is

to be developed by the Agency in

consultation with the States and the

Rural Utilities Service (RUS) of the U.S.

Department of Agriculture. States are to

develop affordability criteria to make

determinations relative to compliance

options available to small drinking

water systems, including eligibility for

small system variances under section

1415 of the Act, as amended. The

Agency published this document on

February 6, 1998 and is available by

contacting the Safe Drinking Water

Hotline at 1–800–426–4791 (request

document number 816–R–98–002). The

Agency may use principles in this

document to develop affordability

criteria for granting small system

variances in those areas in which the

State does not have primary

enforcement responsibility under

section 1413 of the Safe Drinking Water

Act.

4. Section 142.306(b)(3)—Availability of

Approved Variance Technologies

Section 1412(b)(15)(D) of the Act

requires that, not later than August 6,

1998, the Agency issue guidance

regarding the available variance

technologies for each national primary

drinking water regulation for which a

variance may be granted. This guidance

is currently in development by the

Agency’s Office of Groundwater and

Drinking Water and is anticipated to be

released by the statutory deadline. The

proposed variance regulations include,

in various sections (including

§ 142.306), the requirement that, during

review of an application for a small

system variance, a primacy State or the

Administrator make a finding whether,

among other things, the Administrator

has published a variance technology in

accordance with section 1412(b)(15) for

the applicable maximum contaminant

level or treatment technique for which

that variance is sought.

Pursuant to section 1412(b)(15)(A) of

the Act, variance technologies may not

suffice to achieve compliance with the

relevant maximum contaminant level or

treatment technique, but the variance

technologies must achieve the

maximum reduction or inactivation

efficiency that is affordable considering

the size of the system and the quality of

the source water. In addition, section

1412(b)(15)(B) requires that any

identified variance technology be

determined by the Administrator to be

protective of public health.

For further discussion of adequate

protection of human health, please see

section III.G.5 of this preamble. In

addition, section V.F. provides a

discussion of health matters related to

protection of children and

environmental justice concerns.

5. Section 142.306(b)(5)—Adequate

Protection of Public Health

Section 142.306(b)(5)(i–ii) of the

proposed rule codifies the statutory

requirement that the primacy agency

grant a small system variance only

where the terms ensure adequate

protection of public health, considering

the source water quality and removal

efficiencies and expected useful life of

the small systems variance technology.

Under section 1412(b)(15)(B) of the Act,

the Administrator, in identifying

variance technologies for small systems,

must determine that the technology is

protective of public health considering

the quality of the source water to be

treated and the expected useful life of

the technology. The Agency believes

that Congress intended the

Administrator to make a determination

that, on a national level, any variance

technology identified is generally

protective of public health when

applied within general source water

conditions and operating and

maintenance procedures. However,

recognizing that the level of public

health protection afforded by a specific

technology could be dependent on sitespecific factors that may vary system by

system, Congress provided for a

corresponding requirement that the

State also make a determination that the

terms of the variance as applied to a

particular system adequately protect

public health.

In section 1412(b)(15)(C) of the Act,

Congress further provided that the

Administrator must include in the

guidance identifying variance

technologies any assumptions

supporting her determination that a

listed technology is protective of public

health, where such assumptions

concern the public water system to

which the technology may be applied,

or its source waters. The Agency

believes that Congress intended this

information to be used by States to

determine if the assumptions used by

the Administrator in determining that a

technology is protective of public health

are applicable to the specific small

system applying for a variance, and

define what terms or conditions will

ensure adequate protection of public

health. In making a finding of adequate

protection of public health, States need

to consider the elements in the source

water that may interfere with the

performance of the technology.

Depending on the specific technology

being implemented, these may include

the current level of contamination,

variation in levels of contamination, the

rate of change in those variations, the

frequency in which the variations occur,

and the duration that contamination

remains at elevated levels (days, weeks,

months). States should then use these

types of information, as appropriate, to

set site-specific terms and conditions

which will adequately protect public

health.

As previously discussed, EPA

believes that Congress intended the

Administrator to make a determination

that, on a national level, any variance

technology identified is generally

protective of public health under

general source water conditions and

operating and maintenance procedures.

The variance technology guidance

under section 1412(b)(15)(C) will

identify assumptions used by the

Administrator in determining that each

technology is protective of public

health. In doing so, the guidance will

identify the typical removal efficiency

achieved by each variance technology

listed by the Administrator, considering

the overall capabilities of the treatment

process and the source waters on which

the technology would typically be

applied. The guidance will also discuss

source water characteristics that can

adversely affect the removal of the

contaminant by the process. These

general source water characteristics will

include a description of other
19444 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

contaminants that may interfere with

treatment (such as sulfate or iron), pH,

hardness, total dissolved solids, and

turbidity, among others. General

guidance on treatment modifications

that can address the adverse impacts

will also be included. As an example,

the guidance may identify total

dissolved solids in the source water as

having potential to foul the membrane

in the treatment process, and therefore

may suggest that the membrane be more

closely monitored and more frequently

replaced. The State may use this

information in the guidance to set

specific terms and conditions on the

operation of the technology that will

ensure adequate protection of public

health. In the previous example, such

terms might include how often the

membrane should be monitored and

replaced, considering the exact levels of

total dissolved solids in the source

water and any other factors that may

interfere with removal.

EPA is requesting comment on

whether it would be useful and

appropriate, at some time in the future,

to provide additional, technologyspecific guidance on site-specific factors

that should be considered and

appropriate terms and conditions that

may be needed to ensure adequate

protection of public health. Congress

clearly left the responsibility to consider

site-specific factors and define

appropriate terms and conditions to the

States, and EPA does not wish to

diminish that responsibility. At the

same time, the Agency believes it may

be efficient for EPA, to identify, in the

context of its determination that a

technology is protective, those factors of

which the Agency is aware that may be

appropriate for the State to consider on

a site-specific basis and to suggest

appropriate responses to situations

which pose additional risks. EPA is

soliciting comment and

recommendations on both the need for

and appropriateness of such guidance

and on its substantive content if

provided.

In addition to the statutory

requirements that the State consider the

quality of the source water and removal

efficiencies and useful life of the

technology in its determination of

adequate public health protection, EPA

is also considering including a

requirement that the States consider

disproportionate impacts and risks to

sensitive sub-populations, including

infants and pregnant or nursing women.

Although a leading risk to sensitive

subpopulations from drinking water

comes from infectious contaminants,

which are specifically excluded by the

Act from eligibility for small system

variances, there may be other

contaminants which pose special risks

to sensitive subpopulations. In general,

EPA would consider such risks in its

national determination that a variance

technology is protective of public

health. There may be instances,

however, where site-specific factors

would specifically affect the risk to

sensitive subpopulations and should

thus be considered by the State in that

light. EPA is requesting comment on the

appropriateness of including in the final

rule a requirement that the State

specifically consider impacts on

sensitive subpopulations in its

determination of adequate public health

protection. Commenters are encouraged

to provide specific examples of

contaminants for which site-specific

conditions may result in special risks to

sensitive subpopulations. One

alternative to such a requirement would

be for EPA to include in guidance

specific factors that may result in

special risks to sensitive subpopulations

and suggestions on how to address such

risks. EPA is also soliciting comment on

this alternative.

6. Section 142.307—Terms and

Conditions of Small System Variances

Section 142.307 outlines what terms

and conditions must be included in a

small system variance. A State or the

Administrator must clearly specify

enforceable terms and conditions of a

small system variance. The terms and

conditions of a small system variance

issued under this subpart must include,

at a minimum, proper installation of the

applicable small system variance

technology, proper operation and

maintenance of the technology, and

monitoring requirements for the

contaminant for which a small system

variance is sought as specified in 40

CFR Part 141. If a contaminant level is

above the maximum contaminant level,

the public water system is required to

monitor, at least, quarterly. The State

may require more frequent monitoring.

In addition, the State must include any

other terms or conditions that it

determines that are necessary to ensure

adequate protection of public health.

The small system variance must also

include a schedule for the public water

system to comply with the terms and

conditions of the small system variance.

At a minimum, the schedule should

include increments of progress and

quarterly reporting to the State or

Administrator of the public water

system’s compliance with the terms and

conditions of the small system variance.

This quarterly reporting will enable the

primacy agency to adequately track

compliance of the schedule. In addition,

States are required under 40 CFR Part

142.15(a)(1) to report on a quarterly

basis to EPA any violations of the terms

and conditions of a small system

variance.

The schedule must also notify the

public water system when the State or

the Administrator will review the small

system variance under § 142.307(d). The

intent of this provision is to address the

concerns of public water systems that

they be provided adequate notice of

when the State or Administrator will

review the variance.

7. Section 142.307(c)(4)—Compliance

Period for Small System Variances

Section 142.307(c)(4) of the proposed

rule codifies the statutory language

regarding the duration of variances. In

accordance with section 1415(e)(4),

§ 142.307(c)(4) of the proposed rule

states that the terms and conditions of

a small system variance must require

compliance with the conditions of the

variance as soon as practicable but not

later than three years after the date on

which the variance is granted. It is the

Agency’s expectation that this threeyear period will usually be sufficient.

However, section 1415(e)(4) of the Act

also states that the Administrator or the

State may allow up to two additional

years under two situations: (1) Where

the Administrator or the primacy State

determines that additional time is

necessary for capital improvements to

comply with a variance technology,

secure an alternative source of water, or

restructure or consolidate, or (2) to

allow for financial assistance provided

pursuant to section 1452 of the Act or

any other Federal or State program.

The Agency interprets section

1415(e)(4) to allow the primacy agency

to grant the two additional years at the

time of issuance, upon a determination

by the primacy State or the

Administrator that those two additional

years are necessary to ensure

compliance. Therefore, it is possible,

under certain conditions, that small

systems may receive a five-year

compliance schedule to achieve

compliance with the terms and

conditions of the small system variance.

8. Sections 142.308–142.310—Public

Participation Requirements for Issuance

of a Small System Variance

a. Overview. The 1996 Amendments

to the Safe Drinking Water Act provide

for many opportunities for the public to

be involved in decisions that affect the

delivery and treatment of drinking

water. Today’s proposed rule provides

opportunities for the public to become

involved in the decision-making process

of whether a variance or exemption
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19445

should be granted. The Agency’s intent

in the proposed regulations is to provide

sufficient opportunity for meaningful

public participation in the variance and

exemption process, while, at the same

time, keeping the public notification

requirements for small systems and

States manageable.

The Agency is required under section

1415(e)(7)(A)(i) of the Act to promulgate

regulations specifying requirements for

notifying the consumers of the public

water system that a small system

variance is proposed to be granted

(including information regarding the

contaminant and variance) and

requirements for a public hearing on the

small system variance before the

variance is granted. Today’s proposed

rule addresses this statutory mandate

through §§ 142.308–142.310 of the

regulations. These requirements are also

intended to ensure that persons served

by the system who may wish to file a

petition with the Administrator

objecting to the variance, as provided

for in Section 1415(e)(10)(B) of the Act,

have adequate information and time to

do so.

The overall structure of the process

intended by today’s proposed

regulations for granting a small system

variance is as follows:

(1) A small public water system

which is in noncompliance with an

eligible maximum contaminant level or

treatment technique submits an

application to the primacy agency for a

small system variance;

(2) The primacy agency reviews the

small system’s application and performs

a compliance options analysis to

determine if a small system variance

should be issued to the public water

system.

(3) If a small system variance can be

issued in accordance with the Act and

the proposed regulations, and upon

finding and documenting the required

information under Section 142.307 of

the proposed rule, the primacy agency

establishes the terms and conditions of

the proposed small system variance;

(4) The primacy agency prepares a

draft of the small system variance

including the terms and conditions of

the same;

(5) The primacy agency provides

notice to consumers of the system of its

intent to propose the small system

variance and of a public hearing on the

proposed variance, including

information on the contaminant and its

potential health effects, the compliance

options considered, and the terms and

conditions of the proposed variance;

(6) The primacy agency also proposes

the variance by publishing a notice in

the State equivalent of the Federal

Register, or, in the case of the

Administrator, in the Federal Register;

(7) Either before, or within 15 days

after publication of this notice, the

primacy agency conducts a public

hearing on the draft proposed small

system variance;

(8) If a State proposes to issue a small

system variance to a public water

system serving a population of more

than 3,300 and fewer than 10,000

persons, the State must submit the

proposed small system variance and all

supporting documentation, including

any public comment received prior to

this submission, to EPA for review and

approval of the proposed variance;

(9) Within thirty days of the proposal

date of any small system variance,

persons served by the system may

petition the Administrator to object to

the proposed small system variance; and

(10) The Administrator must respond

to all such petitions within 60 days of

receiving them and may object to a

proposed small system variance within

ninety days of the proposal date.

EPA is proposing that the State may

provide the notice for a public meeting

on the small system variance at the

same time that the State notifies the

public that it intends to propose the

small system variance. Under this

approach, the State would not be

required to issue an additional

notification directly to consumers on

the actual date of proposal. Such notice

must be issued at least 15 days before

the actual proposal date and at least 30

days before the public meeting. For

purposes of the consumer petition

process, the variance is proposed on the

actual proposal date (generally the date

of publication in the State or Federal

Register) as opposed to the date that the

State issues one or more public notices.

In summary, the proposed regulation

requires a State to provide at least one

public notice directly to the system’s

consumers (in addition to publishing

the proposed variance in the State or

Federal Register); to fulfill the

requirement of notifying the public of

the public hearing and proposal of the

small system variance. This approach

considers the burden on the State and

system seeking the variance of

providing more than one such notice.

However, the Administrator encourages

the State and small systems to engage

the public in the development and

issuance of the small system variance

early in the process.

The Agency also requests comments

on an alternative approach to the State

notification requirements included in

the proposed regulatory language.

Under this approach, the Agency would

require that the State provide two

distinct public notices directly to water

system consumers during the small

system variance process, in addition to

publishing the proposed variance in the

State or Federal Register. This proposal

would require that the State provide

public notice (1) announcing the

required public meeting at least 30 days

before the meeting and (2) at the time a

State proposes to issue a small system

variance. In addition, the State would be

required to hold the public meeting

before the State proposes the small

system variance. Before holding a public

meeting, the State or the Administrator

would need to make public a draft of the

proposed small system variance to

ensure that the public is adequately

informed of the terms and conditions

likely to be in the proposed small

system variance.

The Agency requests comments on

whether the Agency should require two

separate notices by the State to water

system consumers (in addition to

publication of the proposed variance in

the State or Federal Register), one

announcing the public meeting and a

second on proposal of the small system

variance.

Although the alternative approach

may increase the State burden by

requiring two different notices, adopting

this approach in the regulation may

maximize public notification and

participation in the issuance of a small

system variance. In addition, by

requiring that the public meeting be

held before proposing the small system

variance, a person served by the system

would be guaranteed at least 30 days

following the public meeting before

expiration of the deadline for filing a

petition. Under the proposed approach,

a person served by the system could

have as little as 15 days following the

public meeting to file a petition, though

they would still be guaranteed at least

45 days from the time they first received

notice of the proposed variance (along

will all of the required supporting

information) to file such a petition. In

selecting a final approach, the Agency

will consider all comments and attempt

to balance the burden to the State and

water system with the need to provide

adequate opportunity for public

participation, including use of the

petition process.

b. Notice by public water systems. The

Agency is also requesting comment on

adding an additional public notification

requirement which is currently not a

part of the proposed regulatory

language. Under this approach, the

Agency would require the public water

system to provide notice to the persons

served by the system that the system is

applying for a small system variance.
19446 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

The intent of this would be to address

some stakeholders’ concerns that public

notification should be provided early in

the small system variance process. This

alternative would require the system

applying for a small system variance to

notify the public at the time it applies

for a small system variance. The notice

would be required to be in the same

manner as required for the State in

notifying persons served by the system

that a variance will be proposed as

prescribed, in §§ 142.308(a) through (d)

of the proposed regulation (see III.G.8.d

below). Consistent with the underlying

theme of today’s proposed regulations,

States would be encouraged to provide

assistance to small systems to ensure

that the public notification requirements

are satisfied.

The Agency requests public comment

on whether this additional notification

should be a part of this regulation. The

Agency recognizes that this would place

an additional burden on the small

public water system. However, such

notification may further the goal of

affording early public participation in

the development of the small system

variance, before the State has conducted

its initial compliance options analysis

and considered appropriate terms and

conditions to ensure adequate

protection of public health. The

information provided with such a notice

would necessarily be less complete than

that provided by the State after

reviewing the application. The Agency

also requests comments on what

information should be required in such

a notice and whether there is concern

over the first notification to water

system consumers being one that would

necessarily lack complete information.

c. Public hearing requirement. Section

142.309 of the proposed regulations

addresses the requirements for a public

hearing on a draft proposed small

system variance and notice of the public

hearing. Consistent with section

1415(e)(7)(A)(i) of the Act, a State or the

Administrator is required to provide for

at least one (1) public hearing on the

small system variance before it is

granted. However, before holding a

public meeting, the State or the

Administrator must make public a draft

of the proposed small system variance

along with various supporting

information as specified in § 142.308(c),

to ensure that the public is adequately

informed of the terms and conditions

likely to be in the proposed small

system variance. The State or the

Administrator must notify the public of

the public hearing (and provide the

required supporting information) at

least 30 days before the date of the

meeting.

d. Manner of public notification.

Section 142.308 of the proposed

regulations codifies the Safe Drinking

Water Act provision that any person

served by the system may petition the

Administrator to object to the granting

of a variance. The notice requirements

in the proposed regulations are intended

to provide adequate notice for persons

who may wish to petition the

Administrator to ask the Agency to

object to the variance.

Operators of small systems requested

that the Agency address the issue of

whether persons who are not billing

customers of the system must be

provided a notice by direct mail

considering the burden associated with

identifying and obtaining mailing

addresses for non-billed consumers of a

system’s water. In light of all comments

provided to the Agency during the

stakeholder process, the Agency is

proposing to require individual notice

only to billing customers of the system.

In addition, notice must be provided in

a brief and concise manner to regular

consumers who are not billing

customers, by some other reasonable

method, such as publication in a local

newspaper, posting in public places, or

delivery to community organizations.

Although this might not reach persons

outside the service area, it would reach

factory workers and tenants of

apartment houses and condominiums,

even if those persons do not receive

water bills. Today’s proposed rule

would therefore require that a State

provide some form of notice to all

persons served by the system on a

regular basis.

e. Content of notices. Section

1415(e)(7)(A)(i) of the Safe Drinking

Water Act requires that public

notification include information

regarding the contaminant and variance.

Section 142.308(c) of the proposal

implements this statutory requirement.

In this provision, the Agency is

requiring, along with other information,

specific health effects language to be

used by States in the notices. The

Agency is proposing to require use of

the health effects language developed

for the recently proposed consumer

confidence report rules, 63 Federal

Register 7625, 7631–7632 (Feb. 13,

1998). The Agency believes that there

are many benefits to the use of standard

health effects language in the various

public notice provisions of the amended

Safe Drinking Water Act, particularly in

reducing confusion for the systems and

the public. If the language in the

consumer confidence report rules is

revised after public comment, the

Agency intends to use the revised

language for this rule.

The Agency is also implementing

stakeholders’ concerns that notices not

contain highly technical information by

requiring the notices to provide a brief

non-technical summary of the variance

process and compliance options

considered by the system and the

primacy agency. In addition, all

proposed notices would be required to

meet the multilingual requirement in

§ 142.308(c)(7) of the proposed

regulations, if appropriate. This

requirement specifies that in

communities with a large portion of

non-English-speaking residents,

information in the appropriate language

regarding the content and importance of

the notice should be included. The

multilingual requirement is consistent

with the Agency’s environmental justice

policy.

f. Consumer petition process. Section

1415(e)(10)(B) of the Safe Drinking

Water Act allows for persons served by

the system to petition the Administrator

to object to the granting of a small

system variance; such petitions must be

submitted not later than 30 days after a

State proposes to issue a small system

variance. This statutory provision is

implemented in § 142.310 of the

proposed regulations. Consumer

petitions should be mailed to the EPA

Regional Administrator. The proposed

rule requires that the State or the

Administrator include, in the public

notice of the proposed small system

variance, information to consumers

regarding the petition process and the

address of the EPA Regional

Administrator for their State.

H. Sections 142.311 and 142.312.—

Bases for Administrator’s Objections to

State-Proposed Small System Variances

Pursuant to section 1415(e)(9) of the

Act, § 142.312(a) of the proposed rule

requires a primacy State, which is

proposing to grant a small system

variance to a public water system

serving more than 3,300 and fewer than

10,000 persons, to submit that variance

to the Administrator for review and

approval prior to issuance. Section

142.312(c) requires that, if the

Administrator disapproves the variance,

the Administrator notify the State in

writing of the reasons for such

disapproval. Such disapproval must be

based upon a determination that the

variance is not in compliance with the

requirements of the Act and regulations,

including the requirement that the

system cannot afford to comply with the

maximum contaminant level (MCL) or

treatment technique for which the

variance is being sought, in accordance

with the State affordability criteria.
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19447

In addition, § 142.311(a) of the

proposed rule requires a primacy State,

which is proposing to grant a small

system variance to a public water

system serving 3,300 or fewer persons,

to submit that variance to the

Administrator for review prior to

issuance.

Section 1415(e)(10) of the Act

addresses objections to small system

variances. Pursuant to section

1415(e)(10)(A) of the Act, § 142.311(b) of

the proposed rule states that the

Administrator may review and object to

any variance proposed to be granted by

the State, if such objection is

communicated to the State not later

than 90 days after the State proposes to

grant the variance. Again, the Agency

expects that such objections would be

based upon a determination that the

variance is not in compliance with the

requirements of the Act and the rule,

including a finding consistent with the

State’s affordability criteria that the

system cannot afford to comply. In

accordance with section 1415(e)(10)(A)

of the Act, the notification to the State

must include the basis for the objection

and propose a modification to the

variance to resolve the concerns of the

Administrator. The State shall make the

recommended modification or respond

in writing to each objection. If the State

issues the variance without resolving

the concerns of the Administrator, the

Administrator may overturn the State

decision to grant the variance if the

Administrator determines that the State

decision does not comply with the Act

and the rule.

I. Section 142.313.—Bases for

Administrator’s Review of State Small

System Variance Program

Pursuant to section 1415(e)(8)(A) of

the Safe Drinking Water Act, § 142.313

of the proposed rule requires the

Administrator to periodically review the

primacy State’s variance program to

determine whether variances granted by

the State comply with the requirements

of the Act. The Administrator may

determine that the variances granted by

the primacy State are not in compliance

with the State’s affordability criteria and

the requirements of the Act. Pursuant to

section 1415(e)(8)(B) of the Act,

§ 142.313(b) of the proposed rule

requires the Administrator to notify the

State in writing of the deficiencies and

to make public the determination.

J. General Variances: Time Limitation

Section 1415(a)(1)(A)(ii) of the Safe

Drinking Water Act states that a

schedule prescribed under a general

variance must require compliance by

the public water system, with each

maximum contaminant level or

treatment technique requirement with

respect to which the variance was

granted, as expeditiously as practicable

(as the State may reasonably determine)

but sets no specific final date for

compliance other than that in the

compliance schedule.

The Agency is seeking comment on

whether to add language to § 142.20 of

the proposed regulations that would

require any variance issued by a State

pursuant to section 1415(a) of the Safe

Drinking Water Act to prescribe a

schedule that would require a public

water system to install technology,

which the Administrator finds available,

within three years of the issuance of the

variance. In addition, the regulations

could be modified to allow the State or

Administrator to grant an additional two

years to complete necessary capital

improvements to achieve compliance or

to obtain financial assistance provided

under section 1452 of the Safe Drinking

Water Act or any other Federal or State

program.

The Agency recognizes that under a

general variance, the State must

prescribe a schedule which requires

compliance with the conditions of the

variance as expeditiously as possible (as

determined by the State) which may be

less than three years for a given public

water system. Under this proposal, a

State would also have the flexibility to

require compliance under a general

variance within a possible five-year time

period.

This proposal is based upon the

rationale that because sections 1415(a)

and 1415(e) of the Act require the

installation of specific technology as

specified by the Administrator, it is

reasonable to require a system to install

the technology specified through section

1415(a) within the same time periods as

required for section 1415(e). On the

other hand, Congress did not choose to

impose a time limit on general

variances, further differentiating them

from small system variances. Therefore,

the option of imposing such a time limit

may not be appropriate for general

variances. The Agency requests public

comment on whether the final rule

should specify compliance time periods

for general variances issued under

section 1415(a) of the Safe Drinking

Water Act, with such time periods

matching those specified for small

system variances issued under section

1415(e).

K. Relationship of Exemptions and

Small System Variances

Under section 1416(b)(2)(D) of the

Safe Drinking Water Act, a public water

system may not receive an exemption

under section 1416 if the system was

granted a small system variance under

section 1415(e) of the Act. However, the

Act is silent on whether a small system

variance under section 1415(e) may be

issued after the issuance of an

exemption under section 1416.

The Agency firmly believes that, at

the conclusion of the established

compliance schedule, a public water

system receiving an exemption for a

given contaminant should come into

full compliance with the applicable

national drinking water regulation for

which the exemption was granted,

wherever possible. However, during the

stakeholders process, the Agency

received comments indicating that the

regulations should implement the

exemption provisions of the Act to

allow, under certain conditions, a

public water system which has received

an exemption to subsequently receive a

variance for that same contaminant if it

turns out that there is no affordable

compliance technology for the system.

Today, the Agency is considering

three alternatives to address whether a

small system variance may be issued

after an exemption. The first approach

would prohibit the issuance of a small

system variance after an exemption.

Under this approach, if a public water

system cannot achieve full compliance

with national primary drinking water

regulations at the end of the exemption

period, the public water system would

be subject to an enforcement action by

which failure to comply would be

remedied. The second approach would

allow a State or the Administrator to

issue a small system variance after an

exemption for the same contaminant,

but only under specific conditions. For

example, the rule might require that

before a small system variance is issued

to a system that has already received an

exemption, the primacy agency must

make a determination whether the

system was taking all practicable steps

to meet the requirements of the

established compliance schedule under

the exemption. Under the third

approach, due to the variety of

circumstances under which the issuance

of a small system variance after an

exemption could be appropriate, the

final rule would allow such a variance

but leave the decision to the

implementing agency regarding which

such circumstances merit the issuance

of a small system variance after an

exemption for the same contaminant.

The Agency requests public comment

on which regulatory approach is most

appropriate.
19448 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

L. State Revolving Fund Linkage to

Exemptions

Strong statutory linkage exists

between the exemptions provisions in

section 1416 of the Safe Drinking Water

Act and the State Revolving Fund

provisions of section 1452 of the Act.

Today’s proposed rule attempts to

reflect that linkage. Under section 1452

of the Act, the State may provide at its

discretion additional subsidization to a

recipient of State Revolving Fund

assistance for a project serving a

disadvantaged community according to

the State’s affordability criteria for

drinking water. Under section 1416(a) of

the Act, States are directed to consider

whether a system serves such a

disadvantaged community in

determining whether compelling

economic factors prevent the system

from complying with an MCL or

treatment technique, which is one of the

eligibility requirements for receiving an

exemption. To implement this provision

and reflect the linkage existing in the

Act, today’s proposed regulation, in

§§ 142.20 and 142.50, requires that the

primacy agency consider whether the

public water system serves a

disadvantaged community, pursuant to

section 1452(d) of the Act.

The State Revolving Loan Fund

program plays a prominent role in the

consideration of whether to issue

exemptions. Today’s proposed

regulation requires the State to consider

whether State Revolving Loan Fund

assistance is available to the public

water system to assist it in achieving

compliance with the Act. That

consideration should include an

assessment of the public water system’s

technical, financial, and managerial

capacity, and whether assistance can

help bring the system into compliance

with the Act. These two provisions, the

State Revolving Fund provisions and

the exemptions provisions, can be used

together to complete two important

tasks: (1) ensure that State Revolving

Loan Fund assistance is targeted

towards those public water systems

most in need of such assistance, and (2)

allow systems which receive such

assistance to be able to use it in

conjunction with an exemption in a way

that will produce full compliance with

the Act within the compliance schedule

established by the State.

M. Exemption: Renewals for Small

Systems

Under section 1416(b)(2)(A) of the

Safe Drinking Water Act, an exemption

issued to a public water system must

prescribe a schedule requiring

compliance by the system with each

contaminant level and treatment

technique requirement with respect to

which the exemption was granted as

expeditiously as practicable (as the State

may reasonably determine) but not later

than three years after the otherwise

applicable compliance date established

in section 1412(b)(10). Section

1416(b)(2)(C) states ‘‘[i]n the case of a

system which does not serve more than

a population of 3,300 and which needs

financial assistance for the necessary

improvements, an exemption . . . may be

renewed for one or more additional 2-

year periods, but not to exceed a total

of 6 years, if the system establishes that

it is taking all practicable steps to meet

the requirements of [the established

compliance schedule].’’

The intensive compliance options

analysis required, under § 142.20(b)(1)

and § 142.50(a), to be performed before

an exemption is initially granted should

indicate whether an exemption is

appropriate. If an exemption is

appropriate after the compliance

options analysis, the primacy agency

should facilitate and work with the

system to ensure compliance as soon as

practicable, but within three years of the

otherwise applicable compliance date,

including providing financial assistance

under section 1452 of the Act. Under

§§ 142.20(b)(2) and 142.56 of the

proposed rule, two-year extensions of

exemptions pursuant to section

1416(b)(2)(C) of the Act may only be

granted to systems which serve 3,300 or

fewer people and which need financial

assistance, and upon State review of the

small system’s progress and the State’s

subsequent determination that the small

system and is taking all practicable

steps to meet the requirements of the

Act.

The Agency interprets the use of the

word ‘‘renewal’’ by Congress to indicate

that additional two-year periods may

not be granted ‘‘up-front’’ to the small

system at the time of initial issuance of

the exemption. Review by the primacy

agency is necessary in this renewal

process to ensure that the system is

taking all practicable steps to meet the

requirements of the Act. However, it is

not anticipated that the review process

to renew an exemption will be as

complex as the initial determination

process, including a compliance options

analysis, performed by the primacy

State or the Administrator prior to

granting the exemption. Rather, the

State should review the progress of the

small system to determine if the system

is taking all practicable steps to meet the

compliance schedule. Even though not

required by section 1416 of the Act, the

primacy State may wish to consider the

incorporation of public participation

into the review process of an exemption.

If the State determines that a renewal

would not be appropriate under the Act

or regulations, the public water system

must comply with applicable national

primary drinking water regulations at

the end of the exemption period.

The Agency requests comment on the

above approach and on the level of

effort required by the primacy agency

for review and issuance of renewals of

exemptions. In addition, the Agency

requests comment on whether the

Agency should consider allowing the

extensions to be incorporated in the

initial compliance schedule.

IV. Cost of Rule

The purpose of this rule is to allow

systems, especially those serving under

10,000 people, to adopt affordable

technologies that improve the quality of

their water and move them closer to

compliance with national drinking

water standards. By relieving these

systems of the obligation to achieve full

compliance with applicable standards

when such compliance is not affordable,

while maintaining public health

protection, the rule has the potential to

generate significant cost savings.

However, since the vast majority of

systems currently are already in

compliance with existing standards, the

Agency expects the new variance and

exemption provisions to be used

primarily by systems unable to achieve

compliance (or which require additional

time to achieve compliance) with future

standards. Because the Agency does not

yet know what these new standards will

require or what variance technologies

will be approved, it is not possible to

quantify the potential cost savings of the

rule with respect to future standards.

Rather, at the time that new standards

are promulgated, the Agency will factor

the availability of variances and

exemptions under appropriate

conditions into the cost estimates for

these standards.

The Agency is currently working on

identifying variance technologies for

existing standards. Once these

technologies have been identified and

preliminarily financially analyzed, it

may be possible for the Agency to

estimate the potential cost savings from

variances for these existing standards.

However, the analysis of these

technologies is not far enough along for

the Agency to provide an estimate of

these cost savings with the current

proposal. In addition to the savings

associated with adopting affordable

technologies, however, the Agency

anticipates that systems (and States)

will also realize savings associated with

a reduction in enforcement actions (and
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19449

associated judicial proceedings) for

systems that are not able to comply with

existing standards but will now have

greater access to variances and

exemptions. The Agency has therefore

performed an illustrative analysis of the

costs to systems of applying for

variances and exemptions and the cost

to States of granting them, relative to the

savings from reduced enforcement

actions. This analysis focused on two

sets of existing standards, those

contained in the Lead and Copper Rule,

and those contained in the Phase II/V

Rule.

Based upon this economic impact

analysis (EIA), public water systems

would realize net economic benefits as

a result of today’s proposed rule. Results

of the impact analysis show that, if all

eligible public water systems in all 56

States and territories apply for and are

granted variances under sections

1415(a) or 1415(e), or exemptions under

today’s proposed rule, for the rules

considered in this analysis, then the

regulation will show a net annualized

economic benefit of $573,706 to the

Agency, States, and public water

systems, not including benefits due to

increased public health protection or

savings associated with the installation

of affordable technologies. A summary

of this EIA is available in the Office of

Water Docket, #W–97–26.

The Agency performed an economic

impact analysis of today’s proposed rule

to examine the economic costs and

benefits of this rule on the Agency, State

Drinking Water programs, and public

water systems over a nine-year period.

A nine-year period was chosen because

systems serving fewer than 3,300

persons can operate for a maximum of

nine years under an exemption, if they

receive all available extensions. Small

system variances, however, are available

for the useful life of the variance

technology, which can depend on

various technical and financial factors.

Thus, nine years was chosen as an

appropriate time frame in which to

examine the costs incurred by a

variance and/or exemption program.

The Agency’s economic analysis for

the variance and exemption rule include

variables such as administrative burden

on States and the Agency, as well as

costs on public water systems of

applying and providing notice of

application under the proposed rule.

Costs to the Agency and States

specifically include review of variance

and exemption applications, setting

terms and conditions of small system

variances, and setting and enforcing

milestones within the exemption period

for a system. Some administrative costs,

such as those associated with adopting

new regulations or developing new

criteria, were not included in the

analysis. Estimated benefits include

administrative costs associated with

noncompliance avoided for States and

the Agency, as well as litigation,

judicial, and other process costs avoided

by public water systems and regulatory

agencies as a result of having variance

and exemption programs in place. These

costs avoided are not specific to any

rule.

For the purposes of the economic

impact analysis, the Agency selected

two example regulations for which a

system may apply for either a small

systems variance or exemption. The

Safe Drinking Water Act states in

section 1416(b)(2)(A) that exemptions

require compliance as soon as

practicable but not later than 3 years

after the otherwise applicable

compliance date established for a given

contaminant. Because no SDWA rules

have been promulgated in the past three

years, estimating the costs of

implementing an exemption program

was somewhat problematic, i.e., there

are currently no national primary

drinking water regulations for which

exemptions can be currently granted.

As an alternative, the Agency used the

Lead and Copper Rule (last promulgated

in 1995) as an example so that the

Agency could estimate the process costs

of implementing an exemption on all

affected entities. The Lead and Copper

Rule was chosen because over 68,093

public water systems (approximately

38% of all public water systems) are

subject to that rule, which provides a

practical upper bound on the potential

costs associated with processing and

issuing exemptions for a rule. Further,

the Agency has access to Lead and

Copper Rule compliance data for those

68,093 public water systems.

The Agency also selected the Phase II/

V regulation (inorganic contaminants) as

an example of a pool of maximum

contaminants levels for which variances

under sections 1415(a) and 1415(e) may

be granted. This regulation was selected

because, for the purpose of issuing small

system variances under section 1415(e),

variance technologies are likely to be

designated by the Agency for some of

the maximum contaminant levels under

this regulation. This assumption is

based on preliminary analyses

performed in preparing a small systems

variance technology list under section

1412(b)(15) of the Safe Drinking Act.

Also, Phase II/V addresses

approximately 25 contaminants, some

or all which may also be eligible for

source water variances under section

1415(a) of the Act. Therefore, Phase II/

V helps the Agency obtain a practical

upper bound on the potential costs

associated with processing and issuing

variances for a NPDWR.

In using the Phase II/V Regulation and

the Lead and Copper Rule as examples,

the Agency does not make any

indication as to whether these rules will

be eligible for small system variances.

The Administrator has not yet finally

determined the contaminants for which

small system variance technologies will

be designated.

The table below provides, by system

size as number of persons served, the

number of public water systems (PWSs)

subject to the Lead and Copper Rule and

the Phase II/V Rule.

System size (in persons served)

All PWS

subject to

the lead

and copper rule

All PWS

subject to

the phase

II/V rule

25–500 ...................... 51,191 48,100

501–3,300 ................. 16,902 14,126

Total < 3,301 ............. 68,093 62,226

3,301–10,000 ............ 4,323 3,410

Total < 10,000 ........... 72,416 65,636

> 10,000 .................... 3,529 2,774

Total ................... 75,945 68,410

For both regulations, the Agency used

compliance data to estimate the number

of systems that may be eligible for a

variance under sections 1415(a) or

1415(e) of the Act, or exemptions. The

violation rates used in the economic

impact analysis are identified in the

table below. Violation data for the Lead

and Copper Rule was taken from the

Safe Drinking Water Information System

database; violation rates for the Phase II/

V Rule are from the Public Water

Supply Supervision program

information collection rule.

Percentage of all PWS

potentially eligible for

variances/exemptions

Lead and

copper

(percent)

Phase II/V

(percent)

Treatment Technique or Maximum Contaminant Level (annual violation

rate) ................... 0.50 0.50

Treatment Technique or Maximum Contaminant Level (nineyear violation

rate) ................... 4.50 2.00

The number of potentially eligible

systems (i.e., systems in violation) was

then used to estimate processing costs

incurred by implementing a variance
19450 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

and/or exemption program to all

affected entities, summed for both rules.

As stated previously, these costs include

administrative burden to States and the

Agency, as well as the public water

systems’ costs of applying for variances

and exemptions. These costs were then

compared to the economic benefits to

public water systems, States, and the

Agency of avoiding litigation and other

administrative costs associated with

noncompliance, summed for both rules.

The net results are shown below, and

costs are shown in parentheses.

EPA

State drinking

water programsPWS All entities

Costs ................................................................................................................. $241,821 $5,041,694 $348,716 ........................

Benefits ............................................................................................................. 0 2,863,321 3,342,616 ........................

Net annualized economic costs and benefits .................................................. (241,821) (2,178,373) 2,993,900 $573,706

Net present value of economic costs and benefits .......................................... ........................ ........................ ........................ 4,057,739

The Agency also examined the

distribution of net economic benefits

within differing size categories of public

water systems serving 10,000 or fewer

persons. As shown below, systems

serving 25–500 persons will show the

greatest net benefit from the issuance of

variance and exemptions according to

the model assumptions.

System size (persons

served)

Net

annualized

economic benefits

25–500 .................................. $2,060,939

501–3,300 ............................. 642,323

3,301–10,000 ........................ 149,782

According to the economic impact

analysis and the above tables, the

variance and exemption rule is not

considered to have a ‘‘significant

impact’’ as defined under the Unfunded

Mandates Reform Act, nor would it pose

an adverse impact on a substantial

number of small entities, as discussed in

section V.D. of the preamble to today’s

proposed rule. Instead, public water

systems would show a net economic

benefit under today’s proposed rule.

V. Other Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to review by the Office of

Management and Budget 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:

(1) 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;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of the recipients thereof; or

(4) 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 a ‘‘significant regulatory action’’

because it may raise novel legal or

policy issues. The rule seeks to improve

public health protection while

providing regulatory relief to small

systems by encouraging the adoption, by

small systems unable to comply with

drinking water standards, of affordable

technologies that will improve the

quality of their water even if they do not

achieve full compliance with the MCL

or treatment technique requirement for

a particular contaminant. Therefore,

EPA submitted this action to OMB for

review. Substantive changes made in

response to OMB suggestions or

recommendations will be documented

in the public record.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA),

as amended by the Small Business

Regulatory Enforcement Fairness Act

(SBREFA), generally requires the

Agency to consider explicitly the effect

of proposed regulations on small

entities. The Agency assesses the impact

of the proposed rule on small entities

and considers regulatory alternatives if

a rule has a significant economic impact

on a substantial number of small

entities. However, under section 605(b)

of the RFA, if the Agency certifies that

the rule will not have a significant

economic impact on a substantial

number of small entities, the Agency is

not required to prepare an RFA.

Pursuant to section 605(b) of the

Regulatory Flexibility Act, 5 U.S.C.

605(b), the Administrator certifies that

this rule will not have a significant

economic impact on a substantial

number of small entities. Regulations on

variances and exemptions provide

regulatory relief from the costs of

complying with a maximum

contaminant level or a treatment

technique under a given national

primary drinking water regulation. As

directed in the Safe Drinking Water Act,

this rule describes procedures and

criteria by which those small public

water systems which cannot afford the

appropriate treatment to comply with a

given national primary drinking water

regulation can receive a variance or

exemption. Thus, public water systems

show a net economic benefit under

today’s proposed rule as a result of

being granted a variance or exemption,

rather than bear process costs associated

with litigation and enforcement. Please

see section IV, ‘‘Cost of Rule’’, in today’s

preamble for a more detailed discussion

of the economic costs and benefits of

today’s proposed rule.

C. Paperwork Reduction Act

The information collection

requirements in this proposed rule are

currently being prepared and 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 No. 270.39) document will

be prepared by the Agency to amend the

current Public Water System

Supervision Program ICR (OMB control

number 2040–0090). A copy of the ICR

is available from Sandy Farmer,

Regulatory Information Division, Office

of Policy, Planning, and Evaluation,

U.S. Environmental Protection Agency

(Mailcode: 2137), 401 M St., S.W.,

Washington, D.C., 20460, or by calling

(202) 260–2740. Information

requirements created by this regulation

are not effective until OMB approves

them.

Information required by this

regulation allows the State or the

Administrator to determine that the

circumstances at a public water system
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19451

satisfy the statutory conditions for

granting a small system variance or an

exemption. Some of the required

information allows the Administrator

and the public to determine that the

public had adequate opportunity to

review and comment on a decision to

grant a small system variance. The

information collection requirements of

this rule are mandatory for public water

systems applying for either a variance or

an exemption and for primacy States

that review and either grant or deny

these applications. Information

collected by this rule will be provided

to the public to facilitate public

involvement in this process.

Based upon the analysis of the two

rules discussed above, total public

burden for this collection of information

is estimated as 128,178 hours annually.

The Agency notes however that the rule

is estimated to provide a benefit of

117,414 annual hours of burden

reduction by reducing enforcement

actions against public water systems

unable to comply fully with the

maximum contaminant level or

treatment technique requirements of the

National Primary Drinking Water

Regulations. Because this type of burden

is not generally counted when

developing burden estimates for these

regulations, it is not netted out of the

burden estimated for the current rule.

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 ways 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.

Despite the increased burden hours,

the rule is expected to provide a net

economic benefit to systems choosing to

apply for a variance or exemption, as

discussed in section IV. This benefit

includes avoided litigation and judicial

costs, as well as the savings associated

with the implementation of affordable

technologies.

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.

Comments are requested on the

Agency’s need for the required

information, the accuracy of the

provided burden estimates, and any

suggested methods for minimizing

respondent burden, including through

the use of automated collection

techniques. Send comments on the ICR

June 19, 1998 to: Director, OPPE

Regulatory Information Division, U.S.

Environmental Protection Agency

(Mailcode: 2137), 401 M St., S.W.,

Washington, D.C., 20460 and to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, 725 17th St., N.W., Washington,

D.C., 20503, Attn: Desk Office for EPA

Office of Water. The final rule will

respond to any OMB or public

comments on the information collection

requirements contained in this proposal.

D. Unfunded Mandates Reform Act and

Executive Order 12875

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, Tribal,

and local governments and the private

sector. Under section 202 of the UMRA,

the Agency generally must prepare a

written statement, including a costbenefit analysis, for proposed and final

rules with ‘‘Federal mandates’’ that may

result in expenditures to State, Tribal,

and local governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year.

Before promulgating an Agency rule

for which a written statement is needed,

section 205 of the UMRA generally

requires the Agency to identify and

consider a reasonable number of

regulatory alternatives and adopt the

least costly, most cost-effective, or least

burdensome alternative that achieves

the objectives of the rule. The

provisions of section 205 of the UMRA

do not apply when they are inconsistent

with applicable law. Moreover, section

205 of the UMRA allows the Agency 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 the Agency establishes any

regulatory requirements that may

significantly or uniquely affect small

governments, including Tribal

governments, it must have developed a

small government agency plan under

section 203 of the UMRA. 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 Agency 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. This rule imposes no

enforceable duty on any State, local or

tribal governments or the private sector.

This is because the rule will apply only

to primacy States or Tribes. States or

Tribes may choose whether to acquire or

maintain primacy under the Safe

Drinking Water Act. Further, States and

Tribes with primacy may choose

whether to issue variances and

exemptions; they can decide to not issue

any exemptions or variances at all. If

they choose to issue variances or

exemptions, they are only required to

issue variances and exemptions in a

manner not less stringent than the

conditions under, and the manner in

which, variances and exemptions may

be granted under section 1415 and 1416

of the SDWA. Thus, today’s rule is not

subject to the requirements of section

202 and 205 of the UMRA.

Moreover, because this rule

establishes procedures and criteria for

public water systems to obtain variances

and exemptions from Safe Drinking

Water Act requirements, the Agency has

determined that this rule contains no

regulatory requirements that might

significantly or uniquely adversely

affect small governments and thus this

rule is not subject to the requirement of

section 203 of UMRA.

E. Enhancing Intergovernmental

Partnerships

Executive Order 12875, ‘‘Enhancing

Intergovernmental Partnerships,’’

October 26, 1995, requires the Agency to

consult with State, tribal, and local

entities in the development of rules that

will affect them, and to document for

OMB review the issues raised and how

the issues were addressed. As described

in section II of the Supplementary

Information above, the Agency held

several meetings with a wide variety of

State and local representatives, who

provided meaningful and timely input

toward the development of the proposed

rule. Summaries of these meetings have

been included in the public docket for

this rulemaking.
19452 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

F. Protection of Children and

Environmental Justice

Under the Executive Order entitled

‘‘Protection of Children from

Environmental Health Risks and Safety

Risk,’’ dated April 21, 1997, the Agency

must ensure that its policies, programs,

activities, and standards address

environmental and safety risks to

children. Every regulatory action

submitted to OMB for review under

Executive Order 12866 must include

information that evaluates the

environmental health and safety effects

of the planned regulation on children

and explains why the planned

regulation is preferable to other

potentially effective and reasonably

feasible alternatives considered by the

Agency.

In addition, under Executive Order

12898, entitled ‘‘Federal Actions to

Address Environmental Justice in

Minority Populations and Low-Income

Populations’’, dated February 11, 1994,

the Agency must make achieving

environmental justice part of its

mission.

The Agency believes that this

proposed rule has the potential to

significantly reduce risks to children

caused by inadequate drinking water

and address environmental justice

problems. After a small public water

system applies for a small system

variance, § 142.306(b) of the proposed

rule requires the State to perform a

compliance options analysis for the

system. Small noncompliant public

water systems are often financially

distressed as a result of the service

population’s inability to pay for safe

drinking water and other factors. The

public water system may have

unprotected source waters or is unable

to afford the appropriate treatment

technology or technique, certified

operator, and/or adequate transmission

and distribution systems. As required by

§ 142.306(b) of the proposed rule, an

analysis of the applicant system’s

compliance options will provide insight

into alternative means of compliance.

This might include some form of

restructuring or consolidation with

another system, development of a

cleaner, safer water source, or using

some alternative treatment technique or

technology.

If according to a State’s affordability

criteria, these compliance options are

unaffordable for a drinking water

system, the State may grant the system

a variance. Prior to issuing a variance,

§ 142.306(b)(5) of the proposed rule

requires that the State find that the

terms and conditions of a small system

variance ensure ‘‘adequate protection of

public health.’’ Similarly, an exemption

can only be granted if its conditions

ensure that there is no unreasonable risk

to health.’’ Both findings are made at the

State level on a case-specific basis.

The intent of the small system

variance subpart of the rule is to move

a system, which is not complying with

Safe Drinking Water Act standards

because the treatment required is

unaffordable, toward or into compliance

status by requiring the system to install,

operate and maintain treatment which is

affordable and protective of human

health. Although the level of treatment

provided may not meet the maximum

contaminant level, it must be

determined to be protective of human

health—both by the Agency in

identifying the approved variance

technology and by the primacy State in

making such a finding—if the variance

is granted.

The Agency believes that a system

operating under a small system variance

as proposed today will provide better

treatment than that provided by a

system in noncompliance. Although the

drinking water system may not be able

to provide water that is consistently

below the maximum contaminant level,

a water system operating under a

variance will be able to create a net gain

in the quality of its finished water above

what it could provide before installing

a variance technology. In turn, this will

lead to a net gain in public health

protection for infants, children, and

nursing or pregnant women as well as

for persons in low-income areas, thus

protecting children’s health as well as

alleviating environmental justice

problems.

In addition to requirements that

ensure public participation in granting

variances and exemptions,

§ 142.308(c)(7) of the proposed rule

requires that, in communities with a

large portion of non-English speaking

persons, notices provided to the public

must include information in the

appropriate language regarding the

content and importance of the notice.

For these reasons, the Agency believes

that this rule is consistent with, and

implements, the Executive Order on

protecting children as well as the

Executive Order addressing

environmental justice.

G. National Technology Transfer and

Advancement 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.,

materials specifications, test methods,

sampling procedures, business

practices, etc.) that are developed or

adopted by voluntary consensus

standards bodies. Where available and

potentially applicable voluntary

consensus standards are not used by the

Agency, 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 proposed

rule is procedural and does not involve

or require the use of any technical

standards, the Agency does not believe

that this Act is applicable to this rule.

Moreover, the Agency is unaware of any

voluntary consensus standards relevant

to this rulemaking. Therefore, even if

the Act were applicable to this kind of

rulemaking, the Agency does not believe

that there are any ‘‘available or

potentially applicable’’ voluntary

consensus standards. A commenter who

disagrees with this conclusion should

indicate how the rule is subject to the

Act, and identify any potentially

applicable voluntary consensus

standards.

VI. Request for Public Comments

The Agency seeks public comment on

this proposed rule. In particular, several

sections of the preamble describe

alternative approaches under

consideration by the Agency or

specifically request comment. The topic

areas addressed in these particular

sections include: which contaminants

should be eligible for small system

variances; the usefulness and

appropriateness of additional guidance

on site-specific determination of

adequate public health protection; the

appropriateness of requiring States to

explicitly consider impacts on sensitive

subpopulations, or alternatively of the

Agency providing guidance on impacts

to such subpopulations; the number and

timing of public notices that must be

provided prior to granting a small

system variance; the content of required

health effects language in such notices;

whether the Agency should promulgate

a specific time limit for compliance

with the terms of general variances;

whether small system variances should

be permitted for systems that are unable

to comply within the terms of an

exemption; whether exemption

renewals should be allowed in advance;

and the reporting and recordkeeping

requirements of the rule and associated

burden. Comments are also welcome on

any other aspect of the proposed rule

and supporting documentation.
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19453

Please submit an original and three

copies of your comments and enclosures

(including references). To facilitate

Agency review and response to

comments, the Agency would prefer

that commenters cite, where possible,

the specific paragraph(s) or section(s) in

the notice or supporting documents to

which each comment refers.

Commenters should use a separate

paragraph for each issue discussed.

Commenters who want the Agency to

acknowledge receipt of their comments

should enclose a self-addressed,

stamped envelope. No facsimiles (faxes)

will be accepted.

Written comments must be received

by midnight May 20, 1998. All written

comments should be submitted to: W–

97–26 Comment Clerk, Water Docket

(Mailcode MC4101), Environmental

Protection Agency, 401 M Street, S.W.,

Washington, D.C., 20460.

Comments may also be submitted

electronically to ow–

docket@epa.mail.epa.gov. Electronic

comments must be identified by the

docket number W–97–26. Electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and form of encryption.

The record for this rulemaking has

been established under docket number

W–97–26, and includes supporting

documentation as well as printed, paper

versions of electronic comments.

List of Subjects in 40 CFR Part 142

Environmental protection,

Administrative practice and procedures,

Chemical, Indian-lands, Radiation

protection, Reporting and recordkeeping

requirements, Water supply.

Dated: April 14, 1998.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, 40 CFR part 142 is proposed

to be amended as follows:

PART 142—[AMENDED]

1. The authority citation for part 142

continues to read as follows:

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

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

and 300j–9.

2. Section 142.10 is amended by

revising paragraph (d) to read as

follows:

§ 142.10 Requirements for a determination

of primary enforcement responsibility.

* * * * *

(d) Variances and exemptions. (1) If it

permits small system variances

pursuant to Section 1415(e) of the Act,

it must provide procedures no less

stringent than the Act and subpart K of

this part.

(2) If it permits variances (other than

small system variances) or exemptions,

or both, from the requirements of the

State primary drinking water

regulations, it shall do so under

conditions and in a manner no less

stringent than the requirements of

Sections 1415 and 1416 of the Act. In

granting these variances, the State must

adopt the Administrator’s findings of

best available technology, treatment

techniques, or other means available as

specified in subpart G of this part.

(States with primary enforcement

responsibility may adopt procedures

different from those set forth in subparts

E and F of this part, which apply to the

issuance of variances (other than small

system variances) and exemptions by

the Administrator in States that do not

have primary enforcement

responsibility, provided that the State

procedures meet the requirements of

this paragraph); and

* * * * *

3. Section 142.20 is revised including

the section heading to read as follows:

§ 142.20 State-issued variances and

exemptions under Section 1415(a) and

Section 1416 of the Act.

(a) States with primary enforcement

responsibility may issue variances to

public water systems (other than small

system variances) from the requirements

of primary drinking water regulations

under conditions and in a manner

which are not less stringent than the

requirements under Section 1415(a) of

the Act. A State must document all

findings that are required under Section

1415(a) of the Act. In States that do not

have primary enforcement

responsibility, variances may be granted

by the Administrator pursuant to

subpart E of this part.

(b) States with primary enforcement

responsibility may issue exemptions

from the requirements of primary

drinking water regulations under

conditions and in a manner which are

not less stringent than the requirements

under Section 1416 of the Act. In States

that do not have primary enforcement

responsibility, exemptions may be

granted by the Administrator pursuant

to subpart F of this part.

(1) A State must document all

findings that are required under Section

1416 of the Act, including the following:

(i) Before finding that management

and restructuring changes cannot be

made, a State must consider the

following measures, and the availability

of State Revolving Loan Fund

assistance, or any other Federal or State

program, that is reasonably likely to be

available within the period of the

exemption to implement these

measures:

(A) Consideration of rate increases,

accounting changes, the appointment of

a State-certified operator under the

State’s Operator Certification program,

contractual agreements for joint

operation with one or more public water

systems;

(B) Activities consistent with the

State’s Capacity Development Strategy

to help the public water system acquire

and maintain technical, financial, and

managerial capacity to come into

compliance with the Act; and

(C) Ownership changes, physical

consolidation with another public water

system, or other feasible and

appropriate means of consolidation

which would result in compliance with

the Act;

(ii) The State must consider the

availability of an alternative source of

water, including the feasibility of

partnerships with neighboring public

water systems, as identified by the

public water system or by the State

consistent with the Capacity

Development Strategy.

(2) In the case of a public water

system serving a population of not more

than 3,300 persons and which needs

financial assistance for the necessary

improvements under the initial

compliance schedule, an exemption

granted by the State under Section

1416(b)(2)(B)(i) or (ii) of the Act may be

renewed for one or more additional 2-

year periods, but not to exceed a total

of 6 additional years, only if the public

water system establishes that the public

water system is taking all practicable

steps to meet the requirements of

Section 1416(b)(2)(B) of the Act and the

established compliance schedule. A

State must document its findings in

granting an extension under this

paragraph.

4. The heading for Subpart E is

revised to read as follows:

Subpart E—Variances Issued by the

Administrator Under Section 1415(a) of

the Act

5. Section 142.42 is amended by

revising paragraph (c) to read as follows:

§ 142.42 Consideration of a variance

request.

* * * * *

(c) A variance may be issued to a

public water system on the condition

that the public water system install the

best technology, treatment techniques,

or other means, which the

Administrator finds are available (taking

costs into consideration) and based

upon an evaluation satisfactory to the
19454 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

Administrator that indicates that

alternative sources of water are not

reasonably available to the public water

system.

* * * * *

Subpart F—[Amended]

6. Section 142.50 is revised to read as

follows:

§ 142.50 Requirements for an exemption.

(a) The Administrator may exempt

any public water system within a State

that does not have primary enforcement

responsibility from any requirement

regarding a maximum contaminant level

or any treatment technique requirement,

or from both, of an applicable national

primary drinking water regulation upon

a finding that—(1) Due to compelling

factors (which may include economic

factors, including qualification of the

public water system as a system serving

a disadvantaged community pursuant to

Section 1452(d) of the Act), the public

water system is unable to comply with

such contaminant level or treatment

technique requirement or to implement

measures to develop an alternative

source of water supply;

(2) The public water system was in

operation on the effective date of such

contaminant level or treatment

technique requirement, or for a public

water system that was not in operation

by that date, no reasonable alternative

source of drinking water is available to

such new public water system;

(3) The granting of the exemption will

not result in an unreasonable risk to

health; and

(4) Management or restructuring

changes (or both), as provided in

§ 142.20(b)(1)(i)(A), cannot reasonably

be made that will result in compliance

with the applicable national primary

drinking water regulation or, if

compliance cannot be achieved,

improve the quality of the drinking

water.

(b) No exemption shall be granted

unless the public water system

establishes that the public water system

is taking all practicable steps to meet the

standard and;

(1) The public water system cannot

meet the standard without capital

improvements which cannot be

completed prior to the date established

pursuant to Section 1412(b)(10) of the

Act;

(2) In the case of a public water

system which needs financial assistance

for the necessary improvements, the

public water system has entered into an

agreement to obtain such financial

assistance or assistance pursuant to

Section 1452 of the Act, or any other

Federal or State program that is

reasonably likely to be available within

the period of the exemption; or

(3) The public water system has

entered into an enforceable agreement to

become a part of a regional public water

system.

(c) A public water system may not

receive an exemption under this subpart

if the public water system was granted

a variance under Section 1415(e) of the

Act.

7. Section 142.53 is amended by

revising paragraph (c)(1) to read as

follows:

§ 142.53 Disposition of an exemption

request.

* * * * *

(c) * * *

(1) Compliance (including increments

of progress or measures to develop an

alternative source of water supply) by

the public water system with each

contaminant level requirement or

treatment technique requirement with

respect to which the exemption was

granted; and

* * * * *

8. Section 142.55 is amended by

revising paragraph (b) and removing and

reserving paragraph (c) to read as

follows:

§ 142.55 Final schedule.

* * * * *

(b) Such schedule must require

compliance with each contaminant level

and treatment technique requirement

with respect to which the exemption

was granted as expeditiously as

practicable but not later than 3 years

after the otherwise applicable

compliance date established in Section

1412(b)(10) of the Act.

(c) [Reserved].

9. Section 142.56 is revised to read as

follows:

§ 142.56 Extension of date for compliance.

In the case of a public water system

which serves a population of not more

than 3,300 persons and which needs

financial assistance for the necessary

improvements, an exemption granted

under § 142.50(b) (1) or (2) may be

renewed for one or more additional 2-

year periods, but not to exceed a total

of 6 additional years, if the public water

system establishes that the public water

system is taking all practicable steps to

meet the requirements of Section

1416(b)(2)(B) of the Act and the

established compliance schedule.

10. Subpart K is added to read as

follows:

Subpart K—Variances for Small System

Sec.

General Provisions

142.301 What is a small system variance?

142.302 Who can issue a small system

variance?

142.303 Which size public water systems

can receive a small system variance?

142.304 For which of the regulatory

requirements is a small system variance

available?

142.305 When can a small system variance

be granted by a State?

Review of Small System Variance

Application

142.306 What are the responsibilities of the

public water system, State and the

Administrator in ensuring that sufficient

information is available and for

evaluation of a small system variance

application?

142.307 What terms and conditions must be

included in a small system variance?

Public Participation

142.308 What Public Notice is Required

Before a State or the Administrator

Proposes to issue a Small System

Variance?

142.309 What are the public meeting

requirements associated with the

proposal of a small system variance?

142.310 How can a person served by the

public water system obtain EPA review

of a State proposed small system

variance?

EPA Review and Approval of Small System

Variances

142.311 What procedures allow for the

Administrator to object to a proposed

small system variance or overturn a

granted small system variance for a

public water system serving 3,300 or

fewer persons?

142.312 What EPA action is necessary

when a State proposes to grant a small

system variance to a public water system

serving a population of more than 3,300

and fewer than 10,000 persons?

142.313 How will the Administrator review

a State’s program under this subpart?

Subpart K—Variances for Small

System

General Provisions

§ 142.301 What is a small system

variance?

Section 1415(e) of the Act authorizes

the issuance of variances from the

requirement to comply with a maximum

contaminant level or treatment

technique to systems serving fewer than

10,000 persons. The purpose of this

subpart is to provide the procedures and

criteria for obtaining these variances.

§ 142.302 Who can issue a small system

variance?

A small system variance under this

subpart may only be issued by either:

(a) A State that is exercising primary

enforcement responsibility under
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19455

Subpart B for public water systems

under the State’s jurisdiction; or

(b) The Administrator, for any other

public water systems.

§ 142.303 Which size public water systems

can receive a small system variance?

(a) A State exercising primary

enforcement responsibility for public

water systems (or the Administrator for

other systems) may grant a small system

variance to public water systems serving

3,300 or fewer persons.

(b) With the approval of the

Administrator pursuant to § 142.312, a

State exercising primary enforcement

responsibility for public water systems

may grant a small system variance to

public water systems serving more than

3,300 persons but fewer than 10,000

persons.

(c) In determining the number of

persons served by the public water

system, the State or Administrator must

include persons served by consecutive

systems. A small system variance

granted to a public water system would

also apply to any consecutive system

served by it.

§ 142.304 For which of the regulatory

requirements is a small system variance

available?

(a) A small system variance is not

available under this subpart for a

national primary drinking water

regulation for a microbial contaminant

(including a bacterium, virus, or other

organism) or an indicator or treatment

technique for a microbial contaminant.

(b) A small system variance under this

subpart is otherwise only available for

compliance with a requirement

specifying a maximum contaminant

level or treatment technique for a

contaminant with respect to which;

(1) A national primary drinking water

regulation was promulgated on or after

January 1, 1986; and

(2) The Administrator has published a

small system variance technology

pursuant to Section 1412(b)(15) of the

Act.

§ 142.305 When can a small system

variance be granted by a State?

No small system variance can be

granted by a State until the later of the

following:

(a) 90 days after the State proposes to

grant the small system variance;

(b) If a State is proposing to grant a

small system variance to a public water

system serving 3,300 or fewer persons

and the Administrator objects to the

small system variance, the date on

which the State makes the

recommended modifications or

responds in writing to each objection; or

(c) If a State is proposing to grant a

small system variance to a public water

system serving a population more than

3,300 and fewer than 10,000 persons,

the date the Administrator approves the

small system variance. The

Administrator must approve or

disapprove the variance within 90 days

after it is submitted to the Administrator

for review.

Review of Small System Variance

Application

§ 142.306 What are the responsibilities of

the public water system, State and the

Administrator in ensuring that sufficient

information is available and for evaluation

of a small system variance application?

(a) A public water system requesting

a small system variance must ensure

that accurate and correct information is

available for the State or the

Administrator to issue a small system

variance in accordance with this

subpart. A State may assist a public

water system in compiling information

required for the State or the

Administrator to issue a small system

variance in accordance with this

subpart.

(b) Based upon an application for a

small system variance and other

information, and before a small system

variance may be proposed under this

subpart, the State or the Administrator

must find and document the following:

(1) The public water system is eligible

for a small system variance pursuant to

§§ 142.303 and 142.304;

(2) The public water system cannot

afford to comply, in accordance with the

affordability criteria established by the

Administrator or the State, with the

national primary drinking water

regulation for which a small system

variance is sought, including by:

(i) Treatment;

(ii) Alternative sources of water

supply;

(iii) Restructuring or consolidation

changes, including ownership change

and/or physical consolidation with

another public water system; or

(iv) Obtaining financial assistance

pursuant to Section 1452 of the Act or

any other Federal or State program;

(3) The public water system meets the

source water quality requirements for

installing the small system variance

technology developed pursuant to

guidance published under Section

1412(b)(15) of the Act;

(4) The public water system is

financially and technically capable of

installing, operating and maintaining

the applicable small system variance

technology; and

(5) The terms and conditions of the

small system variance, as developed

through compliance with § 142.307,

ensure adequate protection of human

health, considering the following:

(i) The quality of the source water for

the public water system; and

(ii) Removal efficiencies and expected

useful life of the small system variance

technology.

§ 142.307 What terms and conditions must

be included in a small system variance?

(a) A State or the Administrator must

clearly specify enforceable terms and

conditions of a small system variance.

(b) The terms and conditions of a

small system variance issued under this

subpart must include, at a minimum,

the following requirements:

(1) Proper and effective installation,

operation and maintenance of the

applicable small system variance

technology in accordance with guidance

published by the Administrator

pursuant to Section 1412(b)(15) of the

Act, taking into consideration any

relevant source water characteristics

and any other site-specific conditions

that may affect proper and effective

operation and maintenance of the

technology;

(2) Monitoring requirements, for the

contaminant for which a small system

variance is sought, as specified in 40

CFR Part 141; and

(3) Any other terms or conditions that

are necessary to ensure adequate

protection of public health, which may

include:

(i) Public education requirements; and

(ii) Source water protection

requirements.

(c) The State or the Administrator

must establish a schedule for the public

water system to comply with the terms

and conditions of the small system

variance which must include, at a

minimum, the following requirements:

(1) Increments of progress, such as

milestone dates for the public water

system to apply for financial assistance

and begin capital improvements;

(2) Quarterly reporting to the State or

Administrator of the public water

system’s compliance with the terms and

conditions of the small system variance;

(3) Schedule for the State or the

Administrator to review the small

system variance under paragraph (d) of

this section; and

(4) Compliance with the terms and

conditions of the small system variance

as soon as practicable but not later than

3 years after the date on which the small

system variance is granted. The

Administrator or State may allow up to

2 additional years if the Administrator

or State determines that additional time

is necessary for the public water system

to:
19456 Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules

(i) Complete necessary capital

improvements to comply with the small

system variance technology, secure an

alternative source of water, or

restructure or consolidate; or

(ii) Obtain financial assistance

provided pursuant to Section 1452 of

the Act or any other Federal or State

program.

(d) The State or the Administrator

must review each small system variance

granted not less often than every 5 years

after the compliance date established in

the small system variance to determine

whether the public water system

continues to meet the eligibility criteria

and remains eligible for the small

system variance and is complying with

the terms and conditions of the small

system variance. If the public water

system would no longer be eligible for

a small system variance, the State or

Administrator must determine whether

continued adherence to the small

system variance conditions is in the

public interest.

Public Participation

§ 142.308 What public notice is required

before a State or the Administrator

proposes to issue a small system variance?

(a) At least fifteen (15) days before the

date of proposal, and at least thirty (30)

days prior to a public meeting to discuss

the proposed small system variance, the

State or the Administrator must provide

notice to all consumers of the public

water system. This notice identified in

paragraph (a)(1) of this section must

include the information listed in

paragraph (c) of this section. The notice

identified in paragraph (a)(2) of this

section shall include the information

identified in paragraph (d) of this

section. Notice must be provided to

such consumers by:

(1) Direct mail to billed customers;

and

(2) Any other method reasonably

calculated to notify, in a brief and

concise manner, other persons regularly

served by the system. Such methods

may include publication in a local

newspaper, posting in public places or

delivery to community organizations.

(b) At the time of proposal, the State

must publish a notice in the State

equivalent to the Federal Register or, in

the case of the Administrator, in the

Federal Register. This notice shall

include the information listed in

paragraph (c) of this section.

(c) The notice in paragraphs (a)(1) and

(b) of this section must include, at a

minimum, the following:

(1) Identification of the

contaminant[s] for which a small system

variance is sought;

(2) A brief statement of the health

effects associated with the

contaminant[s] for which a small system

variance is sought using language in

Appendix B of Part 141 Subpart O of

this chapter;

(3) The address and telephone

number at which interested persons

may obtain further information

concerning the contaminant and the

small system variance;

(4) A brief summary, in easily

understandable terms, of the

compliance options considered by the

public water system and of the terms

and conditions of the small system

variance;

(5) A description of the consumer

petition process under § 142.310 and

information on contacting the EPA

Regional Office;

(6) A brief statement of the purpose of

the meeting, information regarding the

time and location for the meeting, and

the address and telephone number at

which interested persons may obtain

further information concerning the

meeting; and

(7) In communities with a large

portion of non-English speaking

residents, information in the

appropriate language regarding the

content and importance of the notice.

(d) The notice in paragraph (a)(2) of

this section must provide sufficient

information to alert readers to the

proposed variance and direct them

where to receive additional information.

(e) At its option, the State or the

Administrator may choose to issue

separate notices or additional notices

related to the proposed small system

variance, provided that the

requirements in paragraphs (a) through

(d) of this section are satisfied.

(f) Prior to promulgating the final

variance, the State or the Administrator

must respond in writing to all

significant public comments received

relating to the small system variance.

Response to public comment and any

other documentation supporting the

issuance of a variance must be made

available to the public after final

promulgation.

§ 142.309 What are the public meeting

requirements associated with the proposal

of a small system variance?

(a) A State or the Administrator must

provide for at least one (1) public

meeting on the small system variance no

later than 15 days after the small system

variance is proposed.

(b) The State or Administrator must

prepare and make publicly available, in

addition to the information listed in

§ 142.308(c), either:

(1) The proposed small system

variance, if the public meeting occurs

after proposal of the small system

variance or;

(2) A draft of the proposed small

system variance, if the public meeting

occurs prior to proposal of the proposed

small system variance.

(c) Notice of the public meeting must

be provided in the manner required

under § 142.308 at least 30 days in

advance of the public meeting.

§ 142.310 How can a person served by the

public water system obtain EPA review of

a State proposed small system variance?

(a) Any person served by the public

water system may petition the

Administrator to object to the granting

of a small system variance within 30

days after a State proposes to grant a

small system variance for a public water

system.

(b) The Administrator must respond

to a petition filed by any person served

by the public water system and

determine whether to object to the small

system variance under § 142.311, no

later than 60 days after the receipt of the

petition.

EPA Review and Approval of Small

System Variances

§ 142.311 What procedures allow the

Administrator to object to a proposed small

system variance or overturn a granted small

system variance for a public water system

serving 3,300 or fewer persons?

(a) At the time a State proposes to

grant a small system variance under this

subpart, the State must submit to the

Administrator the proposed small

system variance and all supporting

information, including any written

public comments received prior to

proposal.

(b) The Administrator may review and

object to any proposed small system

variance within 90 days of receipt of the

proposed small system variance. The

Administrator must notify the State in

writing of each basis for the objection

and propose a modification to the small

system variance to resolve the concerns

of the Administrator. The State must

make the recommended modification,

respond in writing to each objection, or

withdraw the proposal to grant the

small system variance.

(c) If the State issues the small system

variance without resolving the concerns

of the Administrator, the Administrator

may overturn the State decision to grant

the variance if the Administrator

determines that the State decision does

not comply with the Act or this subpart.
Federal Register / Vol. 63, No. 75 / Monday, April 20, 1998 / Proposed Rules 19457

§ 142.312 What EPA action is necessary

when a State proposes to grant a small

system variance to a public water system

serving a population of more than 3,300 and

fewer than 10,000 persons?

(a) At the time a State proposes to

grant a small system variance to a public

water system serving a population of

more than 3,300 and fewer than 10,000

persons, the State must submit the

proposed small system variance and all

supporting information, including

public comments received prior to

proposal, to the Administrator.

(b) The Administrator must approve

or disapprove the small system variance

within 90 days of receipt of the

proposed small system variance and

supporting information. The

Administrator must approve the small

system variance if it meets each

requirement within the Act and this

subpart.

(c) If the Administrator disapproves

the small system variance, the

Administrator must notify the State in

writing of the reasons for disapproval

and the small system variance does not

become effective. The State may

resubmit the small system variance for

review and approval with modifications

to address the objections stated by the

Administrator.

§ 142.313 How will the Administrator

review a State’s program under this

subpart?

(a) The Administrator must

periodically review each State program

under this subpart to determine whether

small system variances granted by the

State comply with the requirements of

the Act, this subpart and the

affordability criteria developed by the

State.

(b) If the Administrator determines

that small system variances granted by

a State are not in compliance with the

requirements of the Act, this subpart or

the affordability criteria developed by

the State, the Administrator shall notify

the State in writing of the deficiencies

and make public the determinations.

(c) The Administrator’s review will be

based in part on quarterly reports

prepared by the States pursuant to

§ 142.15(a)(1) relating to violations of

increments of progress or other violated

terms or conditions of small system

variances.

[FR Doc. 98–10393 Filed 4–17–98; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 390 and 395

[Docket No. FHWA–98–3706]

RIN 2125–AD52

Hours of Service of Drivers;

Supporting Documents

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM); request for comments.

SUMMARY: The FHWA proposes to

amend the hours-of-service (HOS)

recordkeeping requirements of its

regulations. The Hazardous Materials

Transportation Authorization Act of

1994 mandated that amendments be

made to these regulations. The FHWA,

with this NPRM, proposes a supporting

document auditing system that all motor

carriers would use to support the

accuracy of the drivers’ Records of Duty

Status (RODS) and Hours of Service

(HOS). Additionally, this NPRM would

specify that failure to have such a

system would require the motor carrier

to maintain various types of business

documents and all drivers employed by

that motor carrier to collect and submit

such documents in order to support the

accuracy of the drivers’ RODS. The

proposed auditing systems and

document retention proposal would

enable the motor carriers, Federal, State,

and local enforcement officials to

compare business documents with

drivers’ records of duty status to

monitor drivers’ compliance with the

HOS and RODS requirements. This

proposed rule would require drivers and

motor carriers to make use of documents

generated or received in the normal

course of business to verify the accuracy

of a driver’s record of duty status. The

use of electronic recordkeeping methods

is proposed as a preferred alternative to

paper supporting document records.

DATES: Comments should be received by

June 19, 1998.

ADDRESSES: Signed, written comments

should refer to the docket number

appearing at the top of this document

and must be submitted to the Docket

Clerk, U.S. DOT Dockets, Room PL–401,

400 Seventh Street, SW., Washington,

DC 20590–0001. All comments received

will be available for examination at the

above address between 10 a.m. and 5

p.m., e.t., Monday through Friday,

except Federal holidays. Those desiring

notification of receipt of comments must

include a self-addressed, stamped

envelope or postcard.

For Internet users, all comments

received will be available for

examination at the universal resource

locator—http://dms.dot.gov—24 hours

each day, 365 days each year. Please

follow the instructions on-line for more

information and help.

FOR FURTHER INFORMATION CONTACT: For

information regarding program issues:

Mr. David Miller, Office of Motor

Carrier Research and Standards, (202)

366–4009, or for information regarding

legal issues: Mr. Joseph Solomey, Office

of the Chief Counsel, (202) 366–0834,

Federal Highway Administration,

Department of Transportation, 400

Seventh Street, SW., Washington, D.C.

20590.

SUPPLEMENTARY INFORMATION:

The Difference Between This RIN 2125–

AD52 and RIN 2125–AD93

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. This NPRM is the

first document being published for RIN

2125–AD52. Use this RIN when cross

referencing this action with the Unified

Agenda.

This document is not an NPRM for

RIN 2125–AD93, Hours of Service of

Drivers. The FHWA published an

ANPRM on November 5, 1996 for RIN

2125–AD93 (61 FR 57251). The FHWA

is analyzing the comments for RIN

2125–AD93 and will publish an NPRM

in the future based upon those

comments and the accompanying

scientific data.

The FHWA will likely incorporate

this NPRM, or any final rule resulting

from this NPRM, into the upcoming

NPRM for RIN 2125–AD93. Please limit

your analysis, though, and any

comments you may have, to how this

NPRM would affect the current 49 CFR

part 395. Please do not comment on

how these changes might affect RIN

2125–AD93 and the ICC Termination

Act of 1995. You will be given an

additional opportunity to comment at

the time the FHWA publishes the NPRM

for RIN 2125–AD93.

Electronic Availability

An electronic copy of this document

may be downloaded using a computer,

modem, and suitable communications

software from the Government Printing

Office (GPO) electronic bulletin board

service (telephone: 202–512–1661).

Internet users may reach the GPO’s web

page at: http://www.access.gpo.gov/

suldocs/aces/aaces002.html