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National Primary
Drinking Water Regulations:
Consumer Confidence Reports
[Federal Register: February 13, 1998 (Volume 63, Number 30)]
[Proposed Rules]
[Page 7605-7633]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe98-43]
[[Page 7605]]
_______________________________________________________________________
Part VII
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 141 and 142
National Primary Drinking Water Regulations: Consumer Confidence;
Proposed Rule
[[Page 7606]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 141 and 142
RIN 2040-AC 99
[FRL-5967-2]
National Primary Drinking Water Regulations: Consumer Confidence
Reports
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and notice of alternative definition.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to require community water systems to prepare
and provide to their customers annual reports on the quality of the
water delivered by the systems. This action is mandated by the 1996
amendments to the Safe Drinking Water Act (SDWA). These reports would
provide valuable information to consumers of tap water from community
water systems and allow them to make personal health-based decisions
regarding their drinking water consumption.
DATES: Written comments on this proposed rule must be received by EPA
on or before March 30, 1998. EPA will hold a public meeting about the
proposal in Washington, DC on March 3, 1998 beginning at 9 a.m. A
second public meeting will take place in San Francisco, CA on March 10,
1998 beginning at 9 a.m.
ADDRESSES: Send written comments on this proposed rule to the Consumer
Confidence Report Comment Clerk: Water Docket MC-4101 (docket #W-97-
18), Environmental Protection Agency: 401 M Street, S.W., Washington DC
20460. Please submit an original and three copies of your comments and
enclosures (including references).
Commenters who want EPA to acknowledge receipt of their comments
must enclose a self-addressed, stamped envelope. No facsimiles (faxes)
will be accepted. Comments may also be submitted electronically to ow-
docket@epamail.epa.gov. Electronic comments must be submitted as an
ASCII file avoiding the use of special characters and forms of
encryption. Electronic comments must be identified by Docket #W-97-18.
Comments and data will also be accepted on disks in WordPerfect in 5.1
format or ASCII file format. Electronic comments on this notice may be
filed online at many Federal Depository Libraries.
The record for this rulemaking has been established under docket
#W-97-18, and includes supporting documentation as well as printed
paper versions of electronic comments. The record is available for
review at EPA's Water Docket: 401 M Street, S.W., Washington DC 20460.
For access to the Docket materials, call 202-260-3027 between 9:00 a.m.
and 3:30 p.m. for an appointment and reference ``Docket #W-97-18''.
The public meetings will take place in the following locations:
Washington, DC--EPA Auditorium, 401 M St, SW, Washington, DC. San
Francisco--EPA, 1st floor conference rooms, 75 Hawthorne Street, San
Francisco, CA.
FOR FURTHER INFORMATION CONTACT: the Safe Drinking Water Hotline, toll
free 800-426-4791 for general information about, and copies of, this
document. For technical inquiries, contact: Francoise M. Brasier 202-
260-5668 or Rob Allison 202-260-9836.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority
II. Consultation with Public Water Systems, State and Local
Governments, Environmental Groups, Public Interest Groups, and Risk
Communication Experts
III. Discussion of Proposed Rule
A. Purpose and Applicability
B. Effective Dates and Rationale
C. Rationale for Content of the Reports
D. Required Health Information and Rationale
E. Report Delivery
F. Special State Primacy Requirements and Rationale
G. Health Effect Language and Rationale
IV. Request for Public Comments
V. Cost of Rule
VI. Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
1. General
2. Use of Alternative Definition
C. Paperwork Reduction Act
D. Enhancing the Intergovernmental Partnership
E. Unfunded Mandates Reform Act
F. Environmental Justice
G. Risk to Children Analysis
H. National Technology Transfer and Advancement Act
Regulated persons
Potentially regulated persons are community water systems.
------------------------------------------------------------------------
Example of regulated
Category entities
------------------------------------------------------------------------
Publicly-owned CWSs....................... Municipalities; County
Governments; Water
districts; Water and Sewer
Authorities.
Privately-owned CWSs...................... Private water utilities;
homeowners associations.
Ancillary CWSs............................ Persons who deliver drinking
water as an adjunct to
their primary business
(e.g. trailer parks,
retirement homes).
------------------------------------------------------------------------
The table is not intended to be exhaustive. It provides a guide for
readers regarding entities likely to be regulated by this action. This
table lists the types of entities that EPA is now aware could
potentially be regulated by this action. Other types of entities not
listed in this table could also be regulated. To determine whether your
facility is regulated by this action, you should carefully examine the
applicability criteria in Sec. 141.151 of the rule. If you have
questions regarding the applicability of this section to a particular
entity, consult the persons listed in the FOR FURTHER INFORMATION
CONTACT section.
Consumer Right-To-Know Provisions in the Safe Drinking Water Act
The 1996 amendments to the Safe Drinking Water Act contain
extensive provisions for consumer involvement and right-to-know that
herald a new era of public participation in drinking water protection.
These provisions are founded on the principle that consumers have a
right to know what is in their drinking water and where it comes from
before they turn on the tap. With the information provided in these
provisions, consumers will be better able to make health decisions for
themselves and their families.
The Consumer Confidence Reports are the centerpiece of public
right-to-know in SDWA. The information contained in these reports can
raise consumers' awareness of where their water comes from, show them
the process by which safe drinking water is delivered to their homes,
educate them about the importance of prevention measures such as source
water protection to a safe drinking water supply. The reports can be a
tool that starts a dialogue between consumers and their drinking water
utilities, and one that gets consumers more involved in decisions which
may affect their health. The information can be a means for consumers,
especially those with special health needs, to make informed decisions
regarding their drinking water. And finally, the reports
[[Page 7607]]
are a key to unlock more drinking water information. They will provide
access through references or telephone numbers to source water
assessments, health effects data, and additional information about the
water system. The Agency is considering demonstrating its support for
the consumer confidence reports by establishing, in consultation with
the states, an award program which would recognize innovative reports.
Other right-to-know provisions in SDWA include changes to the
public notification requirements, which will give the consumers of
public water supplies more accurate and timely information on
violations. Persons served by a public water system must be given
notice within 24 hours of any violation of a national drinking water
standard ``that has the potential to have serious adverse effects on
human health as a result of short-term exposure.'' EPA's regulation
making these changes is scheduled to be promulgated in August, 1999.
In addition, the public will have access to the completed source
water assessments. States are required under the 1996 SDWA amendments
to assess the condition of every public water supply within the State,
including the boundaries of the source of that water supply and
contamination threats within that source. The consumer confidence
reports will provide information on the availability of the assessment
for that water supply.
By August, 1999, EPA will develop a national contaminant occurrence
data base, that will provide information on the occurrence of both
regulated and unregulated contaminants in public water systems. This
information will be made available to the public through the Internet.
Finally, the public will be provided with early information on
state variance decisions involving their public water system. Public
water systems serving fewer than 10,000 persons that cannot meet
national primary drinking water regulations may apply for a variance to
use an alternate technology to meet the regulation. Consumers served by
that water supply have a right to object to the variance.
All of these public right-to-know provisions are based on the
belief that accountability to the public and the understanding and
support of the public will be vital to address and prevent threats to
drinking water quality in the years ahead. The provisions provide
unprecedented opportunities for the public to participate in decisions
related to the protection of their water supplies. If the public uses
the opportunities, they can ensure that the choices made--particularly
by EPA and the states, but also by water suppliers--respond to the
public's needs and concerns.
I. Statutory Authority
Section 114 of the Safe Drinking Water Act Amendments of 1996
(Public Law 104-182), enacted August 6, 1996, amends Section 1414(c) of
the Act (42 U.S.C. 300g-3(c)). A new section 1414(c)(4) provides for
annual consumer confidence reports by community water systems to their
customers. Section 1414(c)(4)(A) mandates a number of actions by the
Administrator of the Environmental Protection Agency, who is required
to develop and issue regulations within 24 months of the date of
enactment (i.e. in August 1998). The regulations must be developed in
consultation with public water systems, environmental groups, public
interest groups, risk communication experts, the States, and other
interested parties. The regulations must, at a minimum, require each
community water system to mail to each customer of the system at least
once annually a report on the level of contaminants in the drinking
water purveyed by that system. The regulations are required by section
1414(c)(4)(A) to provide a ``brief and plainly worded'' definition of
four terms: ``maximum contaminant level goal,'' ``maximum contaminant
level,'' ``variances,'' and ``exemptions.'' In addition, section
1414(c)(4)(A) requires the regulations to contain brief statements in
plain language regarding the health concerns that resulted in
regulation of each regulated contaminant, and a brief and plainly
worded explanation regarding contaminants that may reasonably be
expected to be present in drinking water, including bottled water.
Finally, section 1414(c)(4)(A) requires the regulations to provide for
an EPA toll-free hotline that consumers can call for more information
and explanation.
Section 1414 of SDWA, as amended, also provides, in a new section
(c)(4)(B) of the Act, additional specific requirements for the contents
of the consumer confidence reports. The reports are required to
include, but need not be limited to, the following information:
<bullet> Information on the source of the water purveyed. (section
1414(c)(4)(B)(i))
<bullet> A brief and plainly worded definition of the terms
``maximum contaminant level goal,'' ``maximum contaminant level,''
``variances,'' and ``exemptions,'' as provided in regulations by the
Administrator. (section 1414(c)(4)(B)(ii))
<bullet> If any regulated contaminant is detected in the water
purveyed by the community water system, a statement setting forth: (1)
the maximum contaminant level goal, (2) the maximum contaminant level,
(3) the level of such contaminant in the water system, and (4) for any
regulated contaminant for which there has been a violation of the
maximum contaminant level during the year covered by the report, the
brief statement in plain language regarding the health concerns that
resulted in regulation of that contaminant, as provided by the
Administrator in regulations under section 1414(c)(4)(A). (section
1414(c)(4)(B)(iii))
<bullet> Information on compliance with national primary drinking
water regulations, as required by the Administrator, and notice if the
system is operating under a variance or exemption and the basis on
which the variance or exemption was granted. (section
1414(c)(4)(B)(iv))
<bullet> Information on the levels of unregulated contaminants for
which monitoring is required under section 1445(a)(2) (including levels
of Cryptosporidium and radon where States determine they may be found.)
(section 1414(c)(4)(B)(v))
<bullet> A statement that the presence of contaminants in drinking
water does not necessarily indicate that the drinking water poses a
health risk and that more information about contaminants and potential
health effects can be obtained by calling the Safe Drinking Water
hotline. (section 1414(c)(4)(B)(vi))
Section 1414(c)(4)(B) also provides that a community water system
may include any additional information that it deems appropriate for
public education. In addition, the Administrator may require, through
regulation, a consumer confidence report to include for not more than
three regulated contaminants, a brief statement in plain language
regarding the health concerns that resulted in regulation of the
contaminant even if there has not been a violation of the maximum
contaminant level during the year concerned.
Section 1414(c)(4)(C) authorizes the Governor of a State to
determine not to apply the mailing requirement to community water
systems serving fewer than 10,000 persons. Such systems then would be
required to inform their customers that the system will not be mailing
the report; make the report available on request to the public; and
publish the report annually in one or more local newspapers serving the
areas in which the systems' customers are located.
[[Page 7608]]
Section 1414(c)(4)(D) allows those community water systems that are
not required to meet the mailing requirements, and which serve 500
persons or fewer, to meet their consumer confidence report obligation
by preparing an annual report and providing notice at least once per
year to each customer by mail, by door-to-door delivery, by posting, or
by any other means authorized in the regulations, that the consumer
confidence report is available upon request.
Section 1414(c)(4)(E) provides that a State exercising primary
enforcement responsibility may establish by rule, after public notice
and comment, alternative requirements with respect to the form and
content of the consumer confidence reports.
This rule, when issued in final form, is intended to fulfill the
rulemaking requirements outlined in amended section 1414(c)(4).
II. Consultation With Public Water Systems, State and Local
Governments, Environmental Groups, Public Interest Groups, and Risk
Communication Experts
As required under section 1414 of SDWA, as amended, the Agency has
met extensively with a broad range of groups in the development of this
proposed rule. Early in the regulatory development process, EPA held a
series of meetings with community water system operators and customers
located in California, to obtain information about California's annual
Water Quality Reports requirement, which has been in effect since 1990,
and to learn from the California program's experiences. In particular,
EPA held meetings with operators of small rural public water systems at
the California Rural Water Association Annual Meeting held in February
1997. Also in February 1997, EPA met with a focus group of water
customers in California to obtain information about their reactions to
receiving annual reports about drinking water quality and how such
reports should be structured and used. Finally, EPA met with members of
the Association of California Water Agencies, primarily including
representatives from large public water systems, public utility
commissions, cities, and metropolitan areas.
The Agency met four times between February and July 1997 with a
special working group of the National Drinking Water Advisory Council
(NDWAC). The Advisory Council has been established under Section
10(a)(2) of Public Law 92-423, ``The Federal Advisory Committee Act''
and SDWA. By law, NDWAC is empowered to provide advice to EPA on
regulatory issues. The Consumer Confidence Report Working Group, in
turn, was established by NDWAC to provide advice to it on the
particular issues raised in the development of EPA's regulation on
consumer confidence reports.
The NDWAC Consumer Confidence Report Working Group was composed of
a designated Federal officer; three NDWAC members who served as liaison
between the full NDWAC and the Working Group; and eighteen other
members. The Working Group contained members from public health
organizations; local, State, and Federal government agencies with
responsibilities for supervising public drinking water providers;
operators of large and small drinking water systems; consumer
representatives; environmental organizations; and business and trade
associations. The Working Group met in four two-day sessions, between
February and July 1997, to discuss issues raised by the consumer
confidence report requirements in the 1996 SDWA amendments and to
analyze and debate initial proposals for the consumer confidence report
regulatory requirements. At the end of the Working Group meetings, in
July 1997, the group submitted a draft of the regulations highlighting
unresolved issues to the full NDWAC for its review. NDWAC in turn
presented its recommendations to EPA on the regulation being proposed
today in a NDWAC report submitted in August 1997. These documents are
available in the Docket for this rulemaking.
In June 1997, EPA convened a one-day meeting of a group of private,
State, and Federal experts in public health and the communication of
risk-related information to general audiences. The panel critiqued
preliminary ideas for the consumer confidence report regulatory
requirements and provided suggestions to EPA on effective methods of
communicating risk information.
As it developed today's regulatory proposal, EPA continued to meet
with water system operators and customers. In May 1997 the Agency
obtained the views of system operators in Wyoming, a State chosen
because EPA operates the drinking water program in that State. The
Agency also held a town meeting in Casper, Wyoming to solicit the views
of water system customers.
EPA also received the views of a number of organizations on the
potential contents of consumer confidence reports. In particular,
Agency staff attended a one-day workshop in May 1997 sponsored by the
Environmental Law Institute in which water customers and citizens in
the Washington, D.C. area discussed communication of drinking water
information. EPA also was provided the results of a series of focus
groups held in six locations across the country by the American Water
Works Association to obtain information and viewpoints about drinking
water risk communication issues.
EPA also discussed the proposal with, and received comments from,
another EPA advisory group, the Local Government Advisory Committee.
EPA discussed the statute and EPA's plans for developing the proposal
at a meeting with the Committee in San Francisco in February 1997, and
provided a draft of the rule to the Committee and discussed the draft
at its meeting in New Orleans in May 1997.
The rule being proposed today is based on the NDWAC recommendations
to EPA and has been developed in close consultation with public water
systems, environmental groups, public interest groups, risk
communication experts, the States, and other interested parties, as
required by the 1996 Amendments.
III. Discussion of Proposed Rule
A. Purpose and Applicability
The rule being proposed today establishes the minimum requirements
for the content of consumer confidence reports.
The rule would apply to existing and new community water systems.
``Community water systems'' are a subset of ``public water systems.'' A
``public water system,'' as defined by section 1401 of SDWA, is ``a
system for the provision of water for human consumption through pipes
or other constructed conveyances, if such system has at least fifteen
service connections or regularly serves at least twenty-five
individuals.'' ``Community water systems'' are public water systems
which serve year-round residents. Thus, systems that do not have 15 or
more service connections used by year-round residents or regularly
supply at least 25 year-round residents are not subject to today's
rule.
Out of the approximately 180 thousand water systems in the United
States, only approximately 60 thousand are considered community water
systems. They range from large municipal systems that serve millions of
persons to small systems, which serve fewer than 100 persons. Community
water systems can be further categorized as publicly-owned systems,
including systems owned and operated by municipalities, townships,
counties,
[[Page 7609]]
water districts, and water authorities; privately-owned systems, which
may be owned and operated by groups ranging from investor owned water
companies to homeowners associations; and ancillary systems, which are
small systems that provide water as an ancillary function of their
principal business or enterprise. Ancillary systems are primarily
mobile home parks and a variety of institutional water providers.
Public, private, and ancillary community water systems are all subject
to today's rule.
The balance of the water systems in the United States, or
approximately 130 thousand systems, are either so-called ``transient
non-community systems'' which do not serve the same people on a day to
day basis (for example, highway rest stops) or ``non-transient non-
community systems'' which serve at least 25 of the same people at least
6 months of the year (for example, schools). Because today's rule
applies only to community water systems, as provided by Congress in the
1996 Amendments to SDWA, transient and non-transient non-community
systems are not covered.
EPA notes that water wholesalers are also considered community
water systems. However, if such a system did not retail water to any
customer, i.e. billing unit or drinking water hook-up, the system would
not have to prepare a consumer confidence report. EPA notes that these
systems already provide monitoring information to the States. They
would have to provide that information to the purchaser so that the
purchaser can prepare the consumer confidence report. In the case of
consecutive systems, i.e. a chain of utilities which provide water to
each other, the system delivering water to the customers would be the
one preparing the consumer confidence report.
B. Effective Dates and Rationale
Today's rule would become effective 30 days after publication of
the final rule in the Federal Register and community water systems
would have to deliver the first report to their customers within 13
months of the effective date of the regulations. The Agency is anxious
that these requirements become effective as soon as practicable because
of the importance of this provision. The Agency also believes that the
proposed dates are practicable since they would give systems a full 14
months to prepare their first report. Each consumer confidence report
is required to describe monitoring results for the past twelve-month
period. EPA believes that giving community water systems a period
slightly longer than a year to prepare the first report ensures that
they will have the time to assemble the necessary information, to
develop the necessary report format, and to arrange for distribution of
the consumer confidence reports. In addition, some States are already
implementing or developing their own reporting requirements. EPA also
believes that the 14 month period after enactment of the rule would
ensure that systems that had recently prepared a State mandated report
would not be required to immediately prepare another report required by
today's rule.
New community water systems, that is, community water systems that
begin delivering water to customers after the effective date of today's
rule, must deliver their first report within 18 months of the date that
they begin delivering water to customers. EPA concluded that the longer
period of time before delivery of the first reports would allow new
systems to initiate and carry out a broader range of monitoring
activities (some required monitoring requires at least one year's
collection of data; other required monitoring may occur over a period
in excess of 12 months). In addition, the 18 month period will allow
new systems to develop and implement procedures for preparing and
distributing the reports.
Some stakeholders argued that the Agency should propose that all
reports be due on a certain date. They believed that this would give
the reports more impact by allowing for an orchestrated outreach
campaign at the time of issuance. The Agency believes however, that
there are merits to allowing some flexibility since different utilities
will have different start-up needs. States can make different decisions
when they promulgate their regulations and would be free to impose a
specific date for issuance of the consumer reports under their
jurisdiction.
C. Rationale for Content of the Reports
In developing today's rule on the contents of consumer confidence
reports prepared by community water systems, EPA sought to provide
community water systems with the maximum amount of flexibility to
design their reports, consistent with the requirements of the 1996
Amendments. The Agency therefore generally limited the requirements for
the content of reports, found in Secs. 141.153 and 141.154 of the
proposed rule, to a clarification and explanation of the requirements
in section 114 of the 1996 Amendments. In addition to today's rule, EPA
is planning to prepare and issue detailed guidance that will provide
supplementary information and examples of ways in which systems can
prepare and present the data in consumer confidence reports. The Agency
also will develop, prior to the effective date of the rule computerized
``fill-in-the-blank'' templates that water systems will be able to use
if they are unable or do not choose to develop their own consumer
confidence report format. The Agency anticipates that very small
systems, in particular, will be able to use these templates to minimize
the burden of preparing the reports.
1. Information on the Source of the Water Purveyed
Consumer confidence reports are intended primarily to convey
information to persons served by community water systems about the
quality of the water they are consuming. Thus, the emphasis of the
reports is on ``finished'' rather than ``source'' water. Congress did,
however, require the reports to include information about the sources
of the water delivered by the system. In addition, many of the
participants in public meetings on the consumer confidence reports held
by EPA, and the members of the expert panel on risk communication
convened by EPA, argued that the reports will be substantially more
interesting and useful to persons if the reports provide context for
the information about finished water. Therefore, today's rule specifies
that each report must identify the sources of the water delivered by
the community water system by providing information on the type of
water (that is, whether the source is ground water, surface water, a
combination of the two, or water obtained from another system); and the
commonly used name or names (if any) and location of the body or bodies
of water. Several commenters on the report requirements suggested to
EPA that maps of water sources are a particularly effective means of
communicating this information. The Agency is encouraging systems to
use maps in the consumer confidence reports whenever possible, although
maps have not been included in the mandatory contents of the reports.
One issue raised during the development of the proposal was whether
the rule should require information on sources of contamination that
may have an impact on the quality of the source water used by a
community water system. Some stakeholders argued that if particular
sources of contamination are known for the sources of water delivered
by the community water system, the consumer confidence reports should
provide a concise description of them. The public frequently has a
general knowledge of
[[Page 7610]]
the contamination sources that affect particular surface water bodies,
according to the advocates of this provision, and failing to provide
information about them can reduce the credibility of the reports
generally. Other stakeholders noted that the consumer confidence
reports deal primarily with the quality of the finished water as it is
delivered to its consumers. They argued that a requirement to provide
information on contaminants in source water without regard to their
presence in the finished water may lead to unnecessary concerns. The
Agency notes the difficulty of definitively linking contaminants to
specific sources and the liability issues that may arise if the reports
attempt to do so without adequate documentation.
The 1996 Amendments to the Safe Drinking Water Act created a new
program of source water assessments under section 1453 of the Act. The
Agency has issued guidance on State Source Water Assessment and
Protection Programs, under which States with primary enforcement
authority must: (1) delineate the boundaries of the areas providing
source waters for public water systems and (2) identify, to the extent
practical, the origins of regulated and certain unregulated
contaminants in the delineated area to determine the susceptibility of
public water systems to such contaminants. Assessments are to be
completed for all public water systems within two years after EPA's
approval of the State's program with possible 18 month extensions.
In an effort to balance competing concerns regarding the provisions
of information on contaminant sources in the report, today's rule
creates a linkage with this Source Water Assessment program by
requiring that if a source water assessment has been completed for the
community water system, that system's consumer confidence report must
notify customers of the availability of this information and the means
to obtain it. This will allow interested parties to get accurate and
detailed information on the sources of contaminants.
However, as recommended by the NDWAC, today's rule does not include
a requirement that consumer confidence reports contain specific
information about sources of contamination which may affect the quality
of the source water, although it does require that generic information
be provided about the likely sources of detected regulated
contaminants. The Agency is inviting comments on this issue.
2. Definitions
The rule contains definitions in Sec. 141.153 (c)(1) and (2) of
four terms that must be used in consumer confidence reports: ``Maximum
contaminant level goal or MCLG,'' ``Maximum Contaminant Level or MCL,''
``Variances,'' and ``Exemptions.'' These definitions differ from those
found in 40 CFR 141.2. The definitions are designed to explain key
components of the national primary drinking water regulations in brief,
plainly worded terms. The draft definitions were examined closely by
the NDWAC Consumer Confidence Reports Working Group, by the expert
panel, and by EPA's own staff. All of these reviewers recognized that
the definitions, particularly the definitions for maximum contaminant
level goal (MCLG) and maximum contaminant level (MCL), represent
dramatic simplifications of complicated processes. The expert panel, in
particular, recommended that EPA test these definitions and, if
necessary, revise them. The Agency therefore is specifically requesting
comments on these proposed definitions.
Maximum Contaminant Level Goal or MCLG is defined by the proposed
rule as ``The level of a contaminant in drinking water below which
there is no known or expected risk to health.'' This definition
therefore highlights the requirement in the SDWA that EPA set MCLGs at
a level at which ``no known or anticipated adverse effects on the
health of persons occur and which allows an adequate margin of
safety.'' The definition does not attempt to describe the use of
Reference Doses to determine the MCLG for non-carcinogenic contaminants
and Class C carcinogens, nor does it specify that for Class A and B
carcinogens the MCLG must be set at zero. The expert panel was
particularly concerned by the lack of context in the proposed
definition, noting that it contains no information about how drinking
water is determined to be safe. At the same time, the Panel recognized
the difficulty of developing a simple and accurate description of the
process that would be suitable for inclusion in the reports. Some panel
members suggested that EPA develop a one-page handout on the process of
setting MCLs and MCLGs, which could either be included in the reports
or made separately available to drinking water consumers. EPA is
requesting comment on this issue.
Maximum Contaminant Level or MCL is defined by the proposed rule as
``the highest level of a contaminant that is allowed in drinking
water.'' This definition highlights the function of the MCL as an
enforceable standard under the primary drinking water regulations. The
agency is aware that this definition does not provide an explanation of
how the MCLs are set. As provided by SDWA, EPA sets MCLs as close to
the corresponding MCLGs as ``feasible with the use of the best
technology, treatment techniques, and other means, which the
Administrator finds, after examination for efficacy under field
conditions and not solely under laboratory conditions are available
(taking cost into consideration).''
The expert panel in particular noted that these definitions do not
provide any content for interpreting the health significance of a
contaminant concentration above the MCLG but below the MCL and
recommended that EPA use a longer definition of MCL such as: ``the
level determined to provide the best protection to health, given cost
and treatment feasibility''. The working group, however, was not able
to agree on any characterization of the MCL beyond a minimal
description of its regulatory function. Some members wanted to stress
the safety factors built into the MCL setting process while others
believed strongly that whenever an MCL is set above an MCLG the best
protection to health is not achieved. One alternative would be to
paraphrase language from the SDWA to provide additional context for the
definitions. For example, MCLG might be defined as ``The level of a
contaminant in drinking water below which there is no known or expected
risk to health, allowing an adequate margin of safety.'' MCL could then
be defined as ``The highest level of a contaminant that is allowed in
drinking water, which is set as close to the MCL as feasible using the
best available treatment technology.'' The Agency requests comments on
the proposed definitions of both MCL and MCLG. Commenters should bear
in mind that brevity and plain language are required by the Statute for
these definitions.
The NDWAC Working Group recommended combining the definitions of
variances and exemptions into a single definition, since in its opinion
the two terms described a single concept. ``Variances and exemptions''
therefore are defined in the rule as ``State permission not to meet an
MCL or a treatment technique under certain conditions.'' Some members
of the Working Group suggested adding the phrase ``provided there is no
unreasonable risk to health'' to the definition, in order to inform
report recipients that this is one of the statutory conditions for
receiving a
[[Page 7611]]
variance or exemption. EPA is requesting comment on this suggestion.
The definitions section of the proposed rule also includes two
definitions not mandated by the 1996 Amendments but considered
necessary by EPA to address situations likely to be encountered by many
systems. When an MCL cannot be established, EPA may set a treatment
technique or action level. Section 141.153(c)(3) of the proposed rule
states that when a report contains data on a contaminant for which EPA
has set a treatment technique or an action level, the report must
define treatment technique as ``A required process intended to reduce
the level of a contaminant in drinking water;'' and must define action
level as ``The concentration of a contaminant which triggers treatment
or other requirement which a water system must follow.''
EPA notes that the use of these definitions in the consumer
confidence reports is not meant in any way to alter the legal and
enforceable definition of these terms.
3. Level of Detected Contaminants
Sections 1414(c)(4)(B)(iii) and (v) of SDWA as amended establish
reporting requirements for ``regulated'' and ``unregulated
contaminants'' detected in the water purveyed by a community water
system. The Agency believes that information on contaminants detected
by the system is the lynchpin of the reports. This is the information
which will allow water consumers to make educated health-related
decisions based on their personal circumstances. Therefore it is
important that the information be as complete and accurate as feasible
without falling into the trap of information overload.
As far as accuracy is concerned, the Agency is aware that choosing
one number to put in the report which gives a true representation of
the water that customers may have consumed during the year will
sometimes be difficult. The quality of the water is subject to spatial
and temporal variability. This variability is magnified in large
systems where blending of several sources may occur. It is not feasible
for the Agency to lay down hard and fast rules to deal with all
instances where the quality of the water may be variable; therefore,
the Agency is proposing a performance standard in Sec. 141.153(d)(1)
which requires operators to provide customers with an accurate picture
of the level of contaminant they may have been exposed to during the
year. The quantitative information on levels of detected contaminants
may, however, provide only part of the picture. The Agency expects that
systems may need to provide qualititative explanations of water quality
variations as well. These explanations could, for example, describe to
customers the fact that warm temperatures facilitate microbial growth
and may necessitate higher levels of disinfectant in the water. EPA
requests comment on the usefulness of such information.
EPA recognizes that this rule will require water system operators
to present information on contaminants detected at very low levels. The
Agency does not intend that operators report levels beneath the Minimum
Detection Limits, based upon the analytic requirements listed in 40 CFR
141 Subpart C, which are levels so low that they are analytically
invalid.
EPA believes that, in order for the public to make well-informed
health decisions, the reports should contain information available to
the systems on any contaminant which may have an impact on the health
of persons whether or not monitoring for these contaminants is
currently required by regulations promulgated under the SDWA. While
section 1414(c)(4) does not explicitly require that the reports contain
all of this information, EPA believes that such reporting is authorized
under both section 1414(c)(4)(B) (which states that the contents of the
report must include, but not be limited to, certain items) and section
1445(a)(2) (which authorizes the Administrator to require regulated
systems to report information to the public on unregulated
contaminants). On the other hand, the Agency does not want
inadvertently to stop systems from performing additional voluntary
monitoring by requiring disclosure of information the significance of
which they could not explain. Therefore the Agency is proposing to
include a provision which strongly encourages systems to include in the
reports any information indicating a possible health concern from
contaminants for which EPA has proposed an NPDWR or issued a health
advisory. If, for example, a contaminant is found at a level exceeding
a proposed MCL or a health advisory level of concern, EPA believes that
the system should disclose this result to its customers. On the other
hand, if the system believes that its voluntary monitoring results are
inconclusive or insignificant from a health standpoint, it need not
report them.
EPA proposes that the reports address, in separate sections, (1)
the results of monitoring mandated by regulation for both regulated and
unregulated contaminants as mandated by section 1414(c)(4)(B)(iii)and
(v), and (2) the results of voluntary monitoring performed by the
system that has shown a detection of radon or Cryptosporidium or the
presence of any additional contaminant which a system elects to include
in the reports.
With respect to the manner in which data are presented, the
proposed rule contains a number of provisions:
a. The initial report must identify the twelve-month period that it
covers. Subsequent reports must identify and cover successive twelve
month periods, to ensure that gaps do not exist between periods covered
by the reports.
b. Data on detected contaminants for which monitoring is mandatory
would be displayed in a table. These data include contaminants subject
to an MCL, action level or treatment technique (regulated
contaminants), contaminants for which monitoring is required by
Sec. 141.40 (unregulated contaminants), and disinfection byproducts and
microbiological contaminants (except Cryptosporidium) for which
monitoring is required by Secs. 141.140 and 141.142 (the information
collection rule). The Agency is not mandating a particular format for
the table. EPA is seeking to leave the maximum possible amount of
flexibility to drinking water systems to design effective methods of
presenting the required data. However, the rule would contain a number
of provisions pertaining to the manner in which the data is presented.
If a system is allowed to monitor for certain contaminants less
often than once a year, the report must include the date and results
of the most recent sampling and a brief explanation (e.g. in a
footnote) for why the sample was not taken within the reporting
period (e.g., ``monitoring only required once every 3 years'').
The MCL for detected regulated contaminants should be presented
in whole units. EPA has recalculated the MCLs in such units, and has
incorporated them into Appendix A of the regulation. The MCLG for
each contaminant should be expressed in the same units as the MCL.
Detections also should be expressed in the same units. The Agency
notes that it will continue to rely on the numbers reported to the
State to comply with the regulations to determine compliance and
undertake enforcement action if necessary. In no case would the way
in which data is presented in the consumer confidence reports affect
an enforcement decision on compliance with MCLs or action levels.
The expert panel encouraged EPA to allow community water systems
to use illustrative examples to clarify the meaning of the detected
levels (e.g., ``equivalent to one drop in a railroad tank car''); in
contrast, the NDWAC working group believed that such illustrations
could be subject to misinterpretation or misuse. The Agency
concluded that it would allow systems the
[[Page 7612]]
flexibility to adopt such examples, but would not encourage their
use.
For contaminants subject to an NPDWR, EPA concluded that
community water systems should be required to report ``the highest
test result used to determine compliance with an NPDWR.'' Thus,
whenever compliance with an MCL is based on a monthly or quarterly
average, the highest average for the year should be included in the
table. If compliance is determined by averaging the results for
various sampling points, only the average should be reported in the
table. Several members of the NDWAC working group and members of the
expert panel urged, instead, that ranges of results or highest
values should be reported. Thus, when compliance is based on an
average, in addition to reporting the average, the system would also
report the highest value detected. The advocates of this approach
noted that for some contaminants, such as TTHMs, parts of the
distribution system may be exposed to concentrations above the
average. The Agency concluded, however, that presentation of ranges
and highest values could be confusing. Instead the Agency is
proposing that for these contaminants, the reports clearly indicate
that the results are based on an average and explain what an average
means. Further, based on the NDWAC recommendations, the Agency is
proposing an exception to this single number reporting. For MCLs
such as TTHMs for which reporting is based on a system-wide average,
and for which substantial variation of contaminant levels may occur
within the distribution system, the reports should disclose
instances where a significant portion (10%) of the population is
consistently exposed to a level higher than the MCL. In such
instances the reports would have to identify the portions of the
service areas where consumers are exposed to these higher levels and
specify what these levels are. The Agency would like specific
comments on this issue. The Agency notes that these circumstances
should not arise if the sampling points for TTHMs have been chosen
in accordance with the regulations and is requesting commenters to
submit specific data if they have information to the contrary. The
Agency also notes that, at this time, this requirement would have no
impact on systems serving fewer than 10,000 persons since they are
exempt from the TTHM requirements. The Agency is also requesting
comment on whether it is necessary for the reports to note
contaminant levels that are averages and explain what that means for
chronic contaminants where the MCL is based on cumulative exposure
over many years.
EPA notes that while in the case of some regulated contaminants,
water systems would report averages rather than the single highest
level, in the case of detected unregulated contaminants, it expects
water systems to report the highest detected level. Some concern was
raised that this single highest level might not be representative of
the water quality, and that consumers might be better served by
putting in place instead a performance standard for the unregulated
contaminants similar to that for the regulated contaminants,
requiring systems to provide customers with an accurate picture of
the level of contaminants they may have been exposed to during the
year. The Agency is requesting comment on this issue.
The proposed rule would require community water systems to
include in the table the likely source of any detected regulated
contaminant. In general EPA is expecting systems to describe these
sources in generic terms such as ``agricultural runoff'',
``petrochemical plants''. In some cases, however the system may have
information obtained though a source water assessment which would
allow the report to be more specific. When the source is not
definitely known the system should include in the table the generic
description of major sources derived from Appendix A. The inclusion
of this requirement was the subject of lengthy discussion among
stakeholders. While some believe that it is important for the public
to understand that contaminants in the finished water are often the
result of activities which are not under the control of the water
systems, others were concerned that requiring operators,
particularly of small systems, to seek specific information would be
too burdensome. The Agency believes that providing generic
descriptions for use in cases where a specific source is not
definitely known appropriately balances those concerns. The Agency
is requesting comments on this requirement and particularly on the
usefulness of the generic list and on its wording.
The proposed rule requires a community water source that
distributes water to its customers from several raw sources which
are not blended, to include a separate column in its table of
results for each service area. The report should also identify the
service area for each entry point into the distribution system.
Today's rule requires community water systems to include
specific information in their consumer confidence reports for every
regulated contaminant detected in violation of an MCL. This
information, which must include a clear and readily understandable
explanation of the violation, the potential health effects, and the
actions taken by the system to address the violation, need not be
included in the table of results (though it may be). Instead, the
system may provide the required information in a separate section on
violations and what they mean, although that section should be
clearly labeled as addressing violations and situated close to the
table of results. The description of potential adverse health
effects included in this section would use the relevant language of
Appendix B. A discussion of the linkages between this proposed
requirement and the requirements for public notification is included
in Section VI of this preamble.
c. Additionally today's rule would require water systems to provide
information on detection of Cryptosporidium, radon and other currently
unregulated contaminants.
Information on Cryptosporidium would be included whether it is
detected in compliance with the ICR regulations or through voluntary
monitoring performed by a system. Specifically, the reports must
include a summary of the monitoring results, information on how the
monitoring was performed, and an explanation of the significance of
the results. When EPA promulgated the ICR, it explained that its
intent in collecting these data was to gain information that it
could use in aggregate to determine national occurrence of
Cryptosporidium and evaluate the treatment cost implications of new
regulations. The Agency emphasized that these data should not be
used to make judgements about the compliance of any specific water
system with drinking water standards. The Agency is not changing
this policy and remains aware that Cryptosporidium presents
difficult measurement challenges. EPA was clear in its preamble for
the ICR (61 FR 24363, May 14, 1996) that laboratory approval
criteria for the ICR were designed to conduct national regulatory
impact analysis and that better method performance would be needed
for individual systems to comply with future rules. Therefore, while
EPA believes that it is appropriate for the systems to disclose
these results to their customers it is not dictating how. The
proposed rule requires water systems that detect Cryptosporidium to
summarize the results of monitoring but is not requiring that these
data be included in the table to give systems more flexibility
regarding how they display the information and how they explain the
significance of the results to consumers. The rule also would
require systems to explain how the monitoring was performed. This
provision is not meant to require systems to give detailed
explanations about laboratory methods or sampling protocols; rather,
EPA expects the systems to provide some indication whether raw water
or finished water was sampled and the extent of sampling. EPA
requests comments about the inclusion of these data in the consumer
confidence reports and the appropriate format for doing so.
When a system detects radon, the Agency is proposing that the
reports must include the results of the monitoring, information on
how the monitoring was performed, and an explanation of the
significance of the results. EPA will provide examples in guidance
of what such an explanation might be. As with Cryptosporidium, EPA
does not expect detailed explanations of the sampling or laboratory
methods.
When a system detects any other unregulated contaminant, the
proposed rule would strongly encourage systems to determine if there
is a health advisory or a proposed NPDWR for that contaminant in
order to determine whether there may be a health concern which
warrants inclusion of the data in the consumer confidence reports.
Note that for Cryptosporidium, radon, and any other contaminants
for which monitoring is not required, the proposed rule allows
systems the flexibility to present results either in the table or in
another section of the report.
4. Compliance With National Primary Drinking Water Regulations
Under section 1414(c)(4)(B)(iv) of SDWA as amended, consumer
confidence reports must contain information on compliance with
[[Page 7613]]
national primary drinking water regulations, as required by the
Administrator. The statute speaks in terms of ``compliance,'' which
might be interpreted to require only certification of compliance/
noncompliance with the NPDWR. However, the Agency believes it is
appropriate to require reporting of any violation of the standards in
the regulations, with the exception of violations of MCLs, which are
addressed elsewhere in the consumer confidence reports. The Agency
requests comments on the need to include all NPDWR violations as listed
in the 144.153(e). An alternative would be to select only these
violations which could clearly result in a health risk. If this
alternative is recommended by commenters, they should include a
discussion of how EPA could differentiate such violations, and specific
suggestions for types of violations (e.g., record-keeping) that
wouldn't need to be reported.
The proposed rule further specifies that the report must contain a
clear and readily understandable explanation of the violation and its
health significance. EPA recognizes that for violations other than MCLs
and treatment techniques, explanations of health significance will need
to be fairly general (e.g., for violation of a monitoring requirement,
the explanation might be ``Failure to perform required monitoring may
cause contaminants with potentially adverse health effects to go
undetected''). Finally, the report must describe the steps the system
has taken to correct the violation. A full discussion of the linkage
between this proposed requirement and the public notification
requirements is included in Section VI of this preamble.
5. Variances and Exemptions
Section 1414(c)(4)(B)(iv) also mandates that consumer confidence
reports must include ``notice if the system is operating under a
variance or exemption and the basis on which the variance or exemption
was granted.'' In order to ensure that the public has an opportunity to
fully understand the basis for the variance or exemption and to
participate in consideration of it, the proposed rule adds a
requirement that two additional items of information be included in the
report. First, the report must provide the dates when the variance or
exemption was issued and when it is due for renewal. Second, the report
must provide a status report on the steps the system is taking to
install treatment, find alternative sources of water, or otherwise
comply with the terms and schedules for the variance or exemption.
While the Agency is mindful of the importance of keeping the consumer
confidence reports brief and relatively simple, it also believes that
in the case of a variance or exemption, the public is best served by a
complete explanation of the situation. The Agency requests comment on
an alternate requirement which would call for a ``brief status report
on compliance with the terms of the variance or exemption.''
6. Additional Information
Section 1414(c)(4)(A) requires EPA's consumer confidence report
regulations to include a ``brief and plainly worded explanation
regarding contaminants that may reasonably be expected to be present in
drinking water, including bottled water.'' Although the statute does
not specify explicitly that reports delivered to customers of community
water systems include this explanation, the Agency concluded that
otherwise there would have been no function served when Congress
required it to be included in the regulation. Further, section
1414(c)(4)(B) gives the Administrator the authority to require that
additional information be included in the reports. The Agency is
proposing therefore that such an explanation must be included in the
reports.
Today's proposed rule includes three paragraphs in response to this
requirement. The first explains that surface water and ground water
provide the source water for both tap water and bottled water, and that
both surface and ground water dissolve naturally-occurring minerals and
radioactive material and can pick up substances resulting from the
presence of animals or from human activity. The second paragraph
provides a short description of the types of contaminants that may be
present in source water. The third paragraph explains that EPA and the
Food and Drug Administration prescribe regulations that limit the
amount of certain contaminants in water provided by community water
systems and in bottled water, respectively. As required by section
1414(c)(4)(B)(ii), it further explains that the presence of
contaminants does not necessarily indicate that the water poses a
health risk, and indicates that the EPA Safe Drinking Water Hotline can
provide additional information about contaminants and health effects.
The NDWAC Working Group and the expert panel both debated the
material at length. Some members were concerned that the language
shifted the focus of the report from finished water to source water. In
addition, members noted that the reports should not suggest that water
can ever be completely free of contaminants, because naturally
occurring contaminants are always going to be present in some
concentration. Some commenters on the language suggested that the
description of potential contaminants could unnecessarily alarm
customers whose water did not contain all of the described categories
of contaminants. The NDWAC's recommendation was that this section of
the report should be entirely optional.
EPA believes that the statute requires that the report include an
explanation for the presence of contaminants and has included this
requirement in Sec. 141.153(g)(1). The Agency agrees with stakeholders
that the systems should be given flexibility in the wording of the
explanation. Therefore, EPA's proposal includes optional language in
proposed Sec. 141.153(g)(1)(i),(ii) and (iii) which systems may use to
fulfill the requirement. Alternatively, subparagraph (iv) provides
minimal language that a system may use to fulfill the requirement.
Systems may also develop their own language. EPA is proposing to
require that the language of subparagraph(v) be included in all reports
since this language is mandated by the statute in section
1414(c)(4)(B)(vi).
D. Required Health Information and Rationale
All consumer confidence reports are required by today's proposed
regulation to include a statement that some people may be more
vulnerable to contaminants in drinking water than the general
population. The statement goes on to identify several categories of
persons who may be particularly at risk from infections, and encourages
them to seek advice from their health providers. It further informs
people that EPA/CDC Guidelines on appropriate means to lessen the risk
of infection from Cryptosporidium may be obtained from the EPA Safe
Drinking Water Hotline and provides the number, as required by the 1996
Amendments. EPA is requesting comments on the clarity and usefulness of
this statement, particularly whether it is clear that only certain
populations are particularly at-risk from infectious contaminants and
whether the statement is appropriate for inclusion in all reports.
In addition to the health effects information that must be included
in the report where there is a violation of an MCL discussed above, the
rule also specifies language that must be included in the reports if
the system has identified a violation of a treatment technique. This
required health information for violation of the surface water
treatment rule describes the
[[Page 7614]]
organisms that may be present in unfiltered or inadequately treated
surface water, and presents information about the health effects that
may result from consumption of such water. This section also addresses
acrylamide and epichlorohydrin, which are impurities in chemicals used
in drinking water treatment, and which are limited under treatment
techniques specified by EPA. Required health effects language also must
be provided in consumer confidence reports about these contaminants, if
their specified treatment techniques are violated.
E. Report Delivery
The rule being proposed today tracks section 1414(c) of SDWA with
respect to how the reports should be delivered to drinking water system
customers. It requires one copy of the report to be mailed to each
customer, unless the Governor of a State has waived the mailing
requirement and the system serves fewer than 10,000 persons. Systems
for whom the mailing requirements have been waived are required to
publish the report in one or more local newspapers serving the area in
which the system is located; inform their customers, either in the
newspapers in which the reports are published or by other means
approved by the state, that the report will not be mailed; and make the
reports available to the public upon request. A further exception is
carved out in the Statute for systems serving 500 or fewer persons for
which the Governor has waived the mailing requirements. These systems
may forego publication of the report in a local newspaper if they
provide notice by mail, door-to-door delivery, or posting in an
appropriate location that the report is available upon request.
The Agency has clarified the report delivery requirements with
respect to community water systems that are in Indian Country. Under
the proposed rule, Tribal Leaders can exercise the same authority as
State Governors to waive the mailing requirement for systems serving
fewer than 10,000 persons, if EPA finds that the tribe is eligible to
be treated in the same manner as a state under section 1451 of SDWA for
purposes of the authority to waive the mailing requirements for such
systems contained in section 1414(c). Under section 1451 (codified at
42 U.S.C. 300j-11) the Administrator of EPA is authorized to treat
Indian Tribes in the same manner as States. Under today's rule, a tribe
may seek eligibility to be treated in the same manner as a state for
purposes of waiving the mailing requirement either by applying as part
of the Tribe's application for primacy over the Public Water System
Program or by applying separately for waiver authority. EPA is not
requiring tribes to have primacy over other aspects of the Public water
system Program to receive waiver authority.
Under either option, a tribe must demonstrate, using the procedures
outlined in 40 CFR section 142.76, that it meets the treatment in the
same manner as a state eligibility requirements contained in SDWA
section 1451 and 40 CFR section 142.72: (1) federal recognition; (2) a
governing body exercising substantial governmental duties and powers;
(3) jurisdiction; and (4) capability. Consistent with the Agency's 1994
``Simplification Rule'' which simplified the tribal eligibility
process, a tribe that has been treated in the same manner as a state
for purposes of another EPA program will not need to reestablish the
first two criteria when applying to waiver authority. Rather, such a
tribe will only need to demonstrate that it meets the jurisdictional
and capability requirements. For detailed guidance on demonstrating the
eligibility requirements, see 53 FR 37396, 37398-402 and 59 FR 64339-
341. EPA proposes to amend CFR sections 142.72 and 142.78 to include
the authority to waive the mailing requirement as a provision for which
EPA is authorized to treat tribes in the same manner as states. EPA
anticipates that a number of community water systems in Indian Country
may be subject to this provision, and it is important for EPA to
provide a mechanism by which the mailing requirement may be waived.
In areas of Indian country where EPA has not found a tribe eligible
to waive the mailing requirement and no state has been explicitly
approved to implement the PWS program, EPA may waive the mailing
requirement of 40 CFR Sec. 144.155(a). EPA does not believe it is
appropriate to require Indian tribes to seek the authority to waive the
mailing requirement because the SDWA does not require tribes to seek
such authority and, while EPA has streamlined the process, seeking
approval to be treated in the same manner as a state may still be a
significant effort that Tribes may not wish to undertake solely to
obtain the authority to waive the mailing requirement for consumer
confidence reports. Yet, as noted above, EPA believes that small
community water systems in Indian Country are just as likely, if not
more likely to need the relief from the mailing requirement. EPA is
authorized under SDWA Sec. 1451, where it is inappropriate or
administratively infeasible to treat tribes as identical to states for
a particular provision, to administer such provision in a manner that
will achieve the purposes of the provision. EPA intends to exercise
that authority to waive the mailing requirement for small systems in
Indian Country in consultation with the Tribe to achieve the purposes
of Section 1414(c) where the relevant tribe has not been approved to be
treated in the same manner as a state and no state has been explicitly
approved by EPA to implement the Public Water System program. EPA
solicits comment on this issue.
EPA considers ``Indian country'' or ``Indian lands'' to be: (a) all
land within the limits of any Indian reservation under the jurisdiction
of the United States government, notwithstanding the issuance of any
patent, and including rights-of-way running through the reservation,
(b) all dependent Indian communities within the borders of the United
States whether within the original or subsequently acquired territory
thereof, and whether within or without the limits of a State, and (c)
all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same. See 40
CFR Sec. 144.3; see also 18 U.S.C. Sec. 1151. EPA has used the term
``Indian lands'' in the past under SDWA, but has defined it as ``Indian
country'' as defined under 18 U.S.C. Sec. 1151. See 40 CFR Sec. 144.3.
To avoid confusion, EPA will use the term ``Indian country'' in today's
proposed rule.
In the course of its public meetings concerning the form and
contents of the consumer confidence report requirements, EPA was urged
by some members of the public to require the reports to be distributed
to all consumers of water supplied by a particular community water
system, rather than only to customers of the system which is the usage
in section 1414(c). Advocates of the consumer-related approach argued
that, for example, residents of apartment houses, condominiums, or
other similar living accommodations might not be indicated in community
water system billing records as customers, and thus would not receive
personal copies of the reports. Rather than relying on their own
customer lists, community water systems could obtain lists of postal
patrons, utilize so-called criss-cross directories, use voter lists, or
in some other way obtain lists of likely consumers of their supplied
water. While the Agency recognizes that sending consumer confidence
reports to water system customers may not reach every person who may
have consumed water from the system, it believes that
[[Page 7615]]
alternative approaches may be more efficient than mandated mailings to
all consumers. Therefore, today's rule calls for systems to make a
``good faith'' effort to reach consumers who do not receive water
bills, using means recommended by the Director of the State Drinking
Water Program. Such means may include posting the report on the
Internet, publishing it in subdivision newsletters, or asking landlords
or apartment managers to post the report in a conspicuous place in
their building. The Agency specifically requests comments on this
issue.
Under Sec. 141.155(b) of the rule, a community water system must
send one copy of its report to the Director of the State Drinking Water
Program, in States with primary enforcement authority. This provision
will help to ensure that reports are prepared and distributed annually,
since the report submitted to the State Director must be accompanied by
a written certification that the report has been distributed to the
system's customers and that the information contained in the report is
correct and consistent with the compliance monitoring data previously
submitted to the State. States will have the opportunity to set up
State clearinghouses of consumer confidence reports, either as a State
function or through a designated third party, so that interested
persons could obtain copies of consumer confidence reports from those
clearinghouses. At a minimum, states that do not set up a clearinghouse
must maintain a list of the phone numbers of community water systems
operators to assist interested persons in obtaining reports.
Section 141.155(c) of the rule requires community water systems to
mail a copy of their consumer confidence report to any other agency in
the State with jurisdiction over community water systems. This could
include public utilities commissions, if they have jurisdiction over
rate making; public health agencies, which may either have primary
jurisdiction over water systems or share that jurisdiction with other
agencies; State environmental agencies; and State agricultural or
natural resource agencies, if they have jurisdiction over water rights,
wells, or other aspects of the system's source water. This section also
authorizes the State Director to designate any other agencies or
clearinghouses to which he can direct copies of the report to be sent.
Section 141.155(e) specifies that all systems, regardless of size,
are required to make their consumer confidence report available to the
public upon request. The rule does not specify the means that systems
must use, leaving them free to mail copies of reports, send them by
telefax, or place copies on an Internet site. However, EPA believes
that the means chosen must be practical from the standpoint of all
potential persons requesting copies of the report. Thus, placing a copy
of the report on the Internet but refusing to mail a copy to a person
without Internet access would be contrary to the intent of this
provision of the rule. The Agency is also interested in getting
comments from States on their ability or interest in placing reports on
the Internet to simplify access to the reports for the general public.
Today's rule does not require that the report be delivered in
languages other than English. However, Sec. 141.153, discussed above,
does require systems in communities with a large proportion of non-
English speaking residents to include information in the appropriate
language in their reports regarding the importance of the report or to
offer additional information in that language.
EPA has been encouraged to require posting of the consumer
confidence reports on the Internet. However, the Agency is uncertain
whether all community water systems possess the necessary means to set
up and maintain an Internet site or, in some case, even to access the
Internet; and whether community water system customers would find such
posting to be useful. Therefore, the Agency is requesting comments on
this subject, as described below.
F. Special State Implementation and Primacy Requirements, and Rationale
As discussed in Section III.B., EPA is proposing that existing
systems must deliver an initial report to customers within 14 months of
the publication of the final rule in the Federal Register. New systems
must deliver an initial report within 18 months after beginning water
delivery service. See proposed section 141.152. Since EPA considers
implementation of this rule to be a requirement for a State to obtain
or maintain primary enforcement responsibility under SDWA Section 1413,
each State with primacy must adopt the requirements of this Subpart (40
CFR 141 Subpart O) no later than two years after the final rule is
published in the Federal Register. See proposed section 142.16(f). As a
result, within several years, all primacy States should have primary
responsibility for implementation of this rule. During any time period
that this rule is effective but that a State does not have either
interim or final primary enforcement responsibility for this rule, EPA
will implement this rule directly in that State.
EPA is proposing that primacy States may adopt alternative
requirements concerning the form and content of these reports through
notice and comment rulemaking. EPA is proposing that the alternative
requirements provide the same type and amount of information as
required by the Federal regulations. Under the SDWA, a State in order
to maintain primacy must adopt requirements which are no less stringent
than the Federal regulations. In the case of consumer confidence
reports, EPA is proposing to interpret stringency as type and amount of
information. State members of the Working Group were concerned that
this interpretation would limit the authority given to the states by
Congress to develop alternative requirements with respect to form and
content of the reports. EPA notes that this proposal contains few
requirements not specifically mandated by the Statute. However, the
Statute provides that the content of the report as prescribed by EPA's
regulations need not be limited to the statutory elements. EPA has
exercised this discretion in a few instances. For example, the rule
would require information on the source of detected contaminant, and a
warning on infectious agents. The Agency's interpretation of stringency
would require state regulations to include the provisions for
information on contaminant sources and the health warning to
susceptible populations. EPA is requesting comments on whether any
information beyond that specifically required by the Statute should be
mandatory for inclusion in state regulations. Under the proposed rule,
States already would have flexibility in specifying how the required
information is presented. For example, definitions of terms, choice of
units for the MCLs, or health effect language could be altered by the
states. These changes would have to be approved by EPA in the context
of primacy revisions.
The proposed rule contains a requirement that each State with
primary enforcement authority make consumer confidence reports
submitted to it available to the public upon request or maintain a list
of telephone numbers for operators of community water systems that
could be used by the public to request copies of reports directly from
the water systems. Representatives from States expressed concern over
the lack of resources in some states to serve as a central distribution
point for the reports, and asserted that neither requirement was
necessary, since States already maintain telephone numbers for the
systems in the State, and State
[[Page 7616]]
Freedom of Information procedures are available if necessary to obtain
access to documents held by the State. The Agency is requesting
comments on whether either requirement should be incorporated into the
regulation.
G. Health Effect Language and Rationale
The SDWA Amendments require EPA to develop and include in the
consumer confidence report regulations ``brief statements in plain
language regarding the health concerns that resulted in regulation of
each regulated contaminant.'' These statements are provided for use by
community water systems in their reports as language that EPA believes
accurately describes those health concerns that customers of the water
system might appropriately have if they consume water containing
contaminants at concentrations above the MCL.
The Agency has placed the brief statements on health concerns in an
appendix to the regulations, because most community systems are in
compliance with the regulations and will not need to refer to this
language. However, the Agency considers the language of the statements
to be mandatory for use in the consumer confidence reports, unless
individual states choose to alter the language for their own
regulations.
EPA examined a number of sources that could be used as the basis
for the brief statements on health concerns, and held extensive
discussions with the NDWAC working group and with its expert panel on
the topic. The two groups looked primarily at the language developed by
EPA for public notification purposes, (Sec. 141.32) which emphasizes
how the MCLs were developed, and EPA's contaminant-specific fact
sheets, which EPA distributes through the SDWA Hotline. The fact sheets
convey more information on expected health effects on humans. In
general, the language in Appendix B being proposed today is a
distillation of information contained in EPA fact sheets which are
included in the docket for this rulemaking.
The expert panel urged EPA to avoid scientific jargon in preparing
the brief statements. The panel also stressed the importance of
communicating effectively that MCLs are set using a conservative
approach. Some members of the expert panel also stated that exceedence
of an MCL does not necessarily lead to health effects. EPA believes
that the proposed language conveys appropriate risk information by
indicating that chronic adverse health effects ``could'' result from
exposures ``in excess'' or ``well in excess'' of the MCL ``over many
years.'' In cases where human or animal exposure to high doses have
indicated that a contaminant is a possible carcinogen, the language
indicates that people who drink water containing the contaminant at
levels above the MCL over many years ``may have an increased risk of
getting cancer.'' EPA believes that the proposed health effects
language accurately conveys what is known about the risk from these
contaminants, but is sensitive to the concern that some water system
customers may interpret the language as indicating a significantly
higher level of incremental risk than would actually result from
exposures at the levels that are likely to occur. EPA is thus seeking
comment on whether there are other ways to communicate to water system
customers the degree of health risk they may face as a result of MCL
violations.
The expert panel further recommended that the statements indicate
whether human or animal studies formed the basis for identifying
adverse health effects. However, EPA is not sure whether this
information is useful to most customers in evaluating the health
significance of MCL violations, and is mindful of the need to keep the
language brief and easy to understand. Thus, the proposed language does
not indicate whether the potential health effects were identified
through human or animal studies. EPA is requesting comment on this
issue.
More generally, EPA is requesting comments on whether the proposed
language accurately summarizes the health concerns associated with each
contaminant, whether the proposed language accurately reflects the risk
assessments and health analyses underlying the regulations of each
contaminant and whether the language adequately informs consumers of
relevant health effects. EPA requests commenters to provide alternative
health effects language and the rationale for such alternative
language. The Agency itself will continue to explore the adequacy of
the proposed health effects language for accurately and appropriately
communicating information about risk. EPA also requests comments on the
fact sheets and their accuracy in summarizing the health effects of
regulated contaminants and whether, as an alternative to the language
of Appendix B, systems should be allowed to simply enclose an approved
EPA fact sheet to provide health effects information.
EPA is particularly interested in the language proposed for
contaminants which present a special risk to pregnant women or
children. Several stakeholders have advocated requiring all consumer
confidence reports to include language alerting consumers to the
dangers posed to pregnant women and children by certain contaminants.
For example, nitrate, lead, and certain non-specified pesticides have
been identified as possibilities for general information on risk. The
Agency believes that inclusion of such a warning in all reports may not
be warranted but plans to reconsider this issue for the final rule and
is requesting comments on appropriate courses of action. The Agency
notes that the MCL for nitrates and the action level for lead have been
established at levels protective of these at-risk populations. The
health effects language included in Appendix B reflects the special
risk that these contaminants may cause. Most importantly, EPA's public
notification regulations require immediate notification and explanation
of health effects for violations of these standards, including impacts
on pregnant women and children. EPA does not believe that the consumer
confidence reports are adequate for addressing these risks because they
will not generally be received soon enough. Nevertheless, violations of
these standards will also be included in the reports. EPA is
specifically requesting comments on the language in Appendix B. With
regard to pesticides and other contaminants EPA is interested in
information and data that commenters may have on the need for a special
warning for pregnant women and children. EPA requests that commenters
submit such information and data to the agency. EPA is also requesting
comments on health effect language to be included in the consumer
confidence reports for 3 regulated contaminants detected below the MCL
(see Section IV.1 of this preamble). Commenters are also invited to
consider this issue within the context of their response to the
comments requested in Section IV.1.
Issues regarding the linkage between the language of Appendix B and
the public notification requirements are discussed in Section VI of
this preamble.
IV. Additional Requests for Public Comments
Throughout the preceding exposition, EPA has requested comment on
various issues. Following are two more issues which did not fit cleanly
into the discussion above and on which EPA would appreciate specific
suggestions and comments.
[[Page 7617]]
1. Health Information on Additional Contaminants
The 1996 Amendments authorize the Administrator to require language
describing health concerns to be included in reports for ``not more
than 3 regulated contaminants'' other than those detected at levels
above the MCL. This provision was discussed at length during the
working group meetings. Some members of the NDWAC working group
strongly encouraged the Agency to require health effect information for
total trihalomethanes (TTHMs), nitrate, and arsenic, even if they were
not detected at levels above their respective MCLs, because of their
question concerning the protectiveness of the MCLs. Other commenters
argued that providing health effects descriptions for chemicals
detected at concentrations below their MCLs would be confusing to
report recipients. The NDWAC recommended that the Administrator not
avail herself of this authority at this time.
The Agency believes that it is important to use the authority
provided by the statute in a judicious manner. Therefore it is
requesting comments on the following alternatives, any of which may be
included in the final rule.
One option would be to require health effects language whenever a
regulated contaminant, for which EPA has proposed to lower the MCL or
promulgated a revised MCL for which the effective date has not yet
occurred, is detected at a level above the lower level. The immediate
impact of this option would be that systems which detect TTHMs above
the proposed revised MCL of 80 mg/l would have to include the language
of Appendix B describing the health effects of TTHMs in their reports.
The Agency would then consider, as it proposes additional revised MCLS,
whether health effect language for these contaminants should be
included in the consumer confidence reports. These possible inclusions
would be discussed in the preamble to these future rulemakings and,
where appropriate, a direct final rule could be issued to require their
inclusion in the reports prior to the promulgation of the new standard.
A likely candidate for future requirements under this scheme would be
arsenic.
Another option would be to select 3 carcinogens for which the MCL
allows a risk level in the range of 10<SUP>-4</SUP> to 10<SUP>-5</SUP>.
Candidates on this list include:
------------------------------------------------------------------------
Contaminant Risk level
------------------------------------------------------------------------
Carbon tetrachloride..................... 2 x 10<SUP>-5
1,2-Dichloroethane....................... 1 x 10<SUP>-5
Vinyl chloride........................... 1 x 10<SUP>-4
Chlordane................................ 7 x 10<SUP>-5
1,2-Dichloropropane...................... 1 x 10<SUP>-5
Ethylene dibromide....................... 1.25 x 10<SUP>-4
PCBs..................................... 1 x 10<SUP>-4
Dichloromethane.......................... 1 x 10<SUP>-5
Dioxin................................... 1.3 x 10<SUP>-4
Hexachlorobenzene........................ 5 x 10<SUP>-5
PAHs..................................... 1 x 10<SUP>-5
------------------------------------------------------------------------
The Agency is requesting comments on which of these contaminants
would be the most significant from a health standpoint if detected in
the finished water. The Agency could rank these contaminants and
systems would have to report their top three detects or select 3
contaminants outright. The Agency is also requesting comments on
whether it should select a threshold for these contaminants such as
detection of 50% or greater of the MCL below which no health effect
language would be necessary.
2. Linkage With the Public Notification Requirements
EPA is currently revising its requirements for public notification.
A water supplier triggers these requirements when it fails to comply
with a MCL, treatment technique, or other NPDWR (i.e., monitoring and
treatment procedures), or is subject to a variance or exemption under
section 1415. Current regulations [40 CFR 141.32] require public
notification:
--by electronic media within 72 hours if the violation represents an
acute health risk;
--by newspaper within two weeks and by mail within 45 days if the water
system violates a MCL or treatment technique; and
--by mail and newspaper within 90 days if the water system violates a
monitoring or testing standard.
Under the 1996 SDWA Amendments, EPA must revise these standards so
that consumers receive quicker notification in the event of a possible
acute health risk, and so that water suppliers have more time (up to
one year) to notify customers of violations with less immediate
effects. The statutory requirements for these revisions would allow
water systems to incorporate their reporting on less serious
violations: (I) in the first bill (if any) prepared after the date of
the occurrence of the violation, (II) in an annual report issued not
later than 1 year after the date of the occurrence of the violation, or
(III) by mail or direct delivery as soon as practicable, but not later
than 1 year after the occurrence of the violation [section
1414(c)(2)(D)(i)].
The option exists for a linkage between the rule proposed today and
those that EPA will revise for public notification. EPA recognizes that
the inclusion of some public notice elements in annual consumer
confidence reports could mean a significant savings of time and
resources for some water systems, and is mindful of its responsibility
under the Paperwork Reduction Act to avoid unnecessarily duplicative
reporting requirements. On the other hand, EPA does not want to
minimize the seriousness of any violation, and believes that it is
essential that consumers know if and when their water supplier has
failed to comply with drinking water regulations.
In trying to balance the issues noted above, EPA requests public
comment on the following issues.
Regarding violations of MCLs, action levels, and treatment
techniques, the Agency realizes that today's rule would duplicate the
current public notification requirements by requiring inclusion of
essentially the same information as is currently required in
Sec. 141.32(d) with the exception of the health effect language. The
proposed rule would require a clear and readily understandable
explanation of the violation, any potential adverse health effects, and
the steps the system has taken to correct the violation. This could be
helpful to consumers who might have overlooked or forgotten about the
regular public notification. One issue on which EPA is specifically
requesting comment is whether this health effect language would be
appropriate for public notification requirements, since having a single
set of health effects explanations would facilitate integration of the
two rules. The Agency notes that when members of the working group
discussed the health effect language they did not discuss it in that
context. Under the current regulations any of these violations would
have already been reported to the public and the consumer confidence
reports were envisioned as a reminder of what customers had already
been told. Further the working group was mindful of the limited amount
of information which could be included in consumer confidence reports
on any specific issue. However, EPA has started the process of revising
the public notification requirements pursuant to the 1996 Amendments to
the SDWA and this issue has been raised. Therefore, EPA requests
comments on the following options:
As this rule is promulgated the Agency would replace the health
effect language in Sec. 141.32 with the language
[[Page 7618]]
proposed in Appendix B of today's proposal so that the same language
would be included in consumer confidence reports and public
notifications.
The Agency would not modify the public notification language until
it promulgated revised regulations for public notification but the
language proposed today would form the core of the public notification
language and be expanded as seen fit for the purpose of public
notification.
Today's proposal is similarly redundant with the current public
notification requirements for violations of other NPDWRs (such as
monitoring and reporting). A less redundant alternative would allow
water systems to simply note a violation of an NPDWR and to attach to
their consumer confidence report a copy of the notice issued at the
time of the violation.
Finally, since SDWA allows public notice for less serious
violations within one year, there might be some violations which
systems would need to report exclusively in the consumer confidence
report. These could even include MCL violations for some contaminants
with strictly chronic health effects. This would allow community water
systems to put out fewer mailings. Besides saving resources, a reduced
number of mailings might encourage consumers to read those notices that
they do receive. This option however would only be available to
community water systems. Non-community water systems who are not
subject to these requirements would have to issue a public notification
for all violations.
If water suppliers were to report certain violations only in the
consumer confidence report, EPA would add language along the following
lines to the proposed regulation:
--[at Sec. 141.153(d)(4)(ii)] If the report is used to satisfy the
requirements of section 1414(c)(2)(D) of SDWA, the report must include
information on [a subset to be determined of] violations which have
occurred within the last 12 months.
--[at Sec. 141.155(d)] Except when the report is used to satisfy the
requirement of section 1414(c)(2)(D) of SDWA, the Governor of a State
or the Tribal Leader can waive the mailing requirement of
Sec. 144.155(a) for community water systems serving fewer than 10,000
persons.
The Agency is requesting comments on this option. Particularly the
Agency would welcome input on violations which systems could
appropriately report exclusively in the consumer confidence reports.
These comments will be used to inform both this rulemaking and the
public notification revisions rulemaking.
V. Cost of Rule
EPA has estimated the costs of complying with the requirements of
the proposed rule in terms of fixed costs and variable costs. Fixed
costs include those costs that a community water system must incur to
comply with the requirements regardless of how many copies of the
report it must deliver. These costs include the costs associated with
reviewing the regulations, collecting data regarding monitoring results
and MCL violations, preparing the technical content of the consumer
confidence report in a format suitable for distribution, identifying
the recipients of the reports, and providing instructions about report
production. Variable costs are costs that increase or decrease along
with the number of consumer confidence reports to be delivered. These
costs include costs of producing the reports (costs of paper,
photocopying or printing, and labels), and inserting the reports in
bills or otherwise delivering them. Based on its analysis, the Agency
estimates the total fixed and variable annualized cost of delivering a
report to every customer served by all community water systems
nationally (except for California, which already requires notices
similar to the consumer confidence reports required by the proposed
rule) is $20,286,113. This includes $7,295,575 in fixed costs and
$12,990,538 in variable costs. Table V.1 gives a breakdown of costs by
system size and also shows state and federal costs.
BILLING CODE 6560-50-P
[[Page 7619]]
[GRAPHIC] [TIFF OMITTED] TP13FE98.006
BILLING CODE 6560-50-C
[[Page 7620]]
For more information about the costs of the rule and how EPA
estimated them, see the Regulatory Flexibility Screening Analysis and
the Supporting Statement for the EPA Information Collection Request
(ICR #1832.01) that EPA submitted for OMB approval under the Paperwork
Reduction Act. EPA is requesting comment on its cost estimates and
methodology.
VI. 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 Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(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
represents the first time that water systems will be required to submit
important information to customers regarding the quality of their
drinking water on a routine basis. 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
1. General
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), requires EPA 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.
Under the RFA, 5 U.S.C. 601 et seq., an agency must prepare an initial
regulatory flexibility analysis (IRFA) describing the economic impact
of a rule on small entities as part of rulemaking. However, under
section 605(b) of the RFA, if EPA certifies that the rule will not have
a significant economic impact on a substantial number of small
entities, EPA is not required to prepare an IRFA.
EPA has determined that this proposed rule will affect small water
utilities, since it is applicable to all community water systems,
including small systems. However, EPA has estimated the impact of the
proposed rule and concluded that the impact of the rule will not be
significant. Therefore, the Administrator is today certifying, pursuant
to section 605(b) of the RFA, that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
The basis for this certification is as follows: the annualized
compliance costs of the rule represent less than 1% of sales for small
businesses and less than 1% of revenues for small governments. No small
not-for-profit enterprises were identified as community water systems.
For this analysis EPA selected systems serving 10,000 or fewer persons
as the criterion for small water systems and therefore as the
definition of small entity for the purposes of the RFA. This is the
cut-off level specified by Congress in this provision for small system
flexibility in delivery of the reports. Because this does not
correspond to the definition established under the RFA, EPA has
consulted with the Small Business Administration (SBA) on the use of
this alternative definition (see next section). Further information
supporting this certification is available in the public docket for
this rule.
Since the Administrator is certifying this rule, the Agency did not
prepare an IRFA. Nevertheless, the Agency has conducted outreach to
address the small-entity impacts that do exist and to gather
information. The Agency also has structured the rule to avoid
significant impacts on a substantial number of small entities by
providing flexibility to community water systems in the design of
consumer confidence reports; offering them the choice to use a
simplified format to prepare the reports; incorporating procedures by
which small systems can make reports available to their customers by
methods other than mailing; and by limiting the absolute requirement
for distribution of reports to water system customers rather than
consumers. Further the Agency notes that in general the regulations
issued under SDWA place a lesser burden on small systems, for example,
the TTHM and information collection rules do not apply to small
systems. For most regulated contaminants, small systems have to collect
fewer samples. Therefore the small systems operators will have
significantly less information to report in consumer confidence
reports.
2. Use of Alternative Definition
As explained above, for this assessment of impact on small
entities, EPA has defined a small entity as a public water system (PWS)
that serves 10,000 or fewer persons. PWSs affected by this proposal
would include PWSs owned and operated by governmental jurisdictions as
well as those that are privately owned. As indicated above, there are
no PWSs owned by not-for-profit organizations.
EPA proposes to define ``small entity'' for purposes of its
regulatory flexibility assessments under the RFA for all future
drinking water regulations in the same way. By using this definition
for the regulatory flexibility assessments, EPA will better reflect the
realities of the drinking water industry. Furthermore, this definition
is consistent with specific direction from Congress in several
provisions of the 1996 amendments that provide relief from regulatory
requirements for PWSs serving 10,000 or fewer people.
As previously described, the RFA requires an agency, whenever it
publishes a notice of general rulemaking, to prepare a regulatory
flexibility analysis that describes the impact of a rule on small
entities unless the agency certifies that the rule will not have a
significant impact on a substantial number of small entities. 5 U.S.C.
Secs. 603(a), 604(a) and 605(b). Under the RFA, the term ``small
entity'' means ``small business,'' ``small governmental jurisdiction''
and ``small organization.'' These terms are further defined by the Act.
In the case of a ``small business,'' the term has the same meaning
as a ``small business concern'' under section 3 of the Small Business
Act. ``Small governmental jurisdiction'' means the government of
cities, counties, towns and villages, among others, with a population
of less than 50,000. A ``small organization'' is any not-for-profit
enterprise that is independently owned and operated. 5 U.S.C. Sec. 601
(3), (4) & (5).
The RFA authorizes an agency to establish an alternative definition
for these terms after an opportunity for
[[Page 7621]]
public comment. Additionally, in the case of an alternative definition
of ``small business,'' an agency must consult with the Office of
Advocacy of the Small Business Administration (SBA) concerning such
alternative definition.
EPA is today asking for public comment on its intention to define
``small business,'' ``small organization,'' and ``small governmental
jurisdiction'' for purposes of the regulatory flexibility assessments
for its drinking water regulations as a PWS serving 10,000 or fewer
people. The Agency has consulted with the SBA Office of Advocacy. The
Office of Advocacy agreed with the Agency's choice of systems serving
less than 10,000 persons for an alternative small business definition
for this rulemaking, and plans to revisit this issue with EPA in future
rulemakings under SDWA.
The following provides additional explanation why the Agency
proposes to use a different definition from that which would generally
be applicable under the RFA.
The alternate definition will focus the Agency's regulatory
flexibility analysis on those PWS most likely to experience an economic
hardship associated with complying with new drinking water regulations
to be proposed under the Safe Drinking Water Act (SDWA). There are
several compelling factual, statutory and programmatic reasons to
support the proposed definition.
SBA has by regulation defined small business concerns. SBA
regulations typically define a small business in terms of either total
revenues or total employees. Under SBA's definition, a ``small,''
privately-owned water utility would be one with revenues of less than
$5,000,000. Using this definition, ``small'' privately-owned water
systems would include systems that serve up to approximately 40,000
people. Ninety-eight percent of PWSs serve populations of 10,000 or
fewer. The average annual revenue for a system in this class size is
less than $600,000.
The Agency has concluded that defining a ``small entity'' for RFA
purposes as a PWS that serve 10,000 or fewer persons is both more
reflective of the small water systems in the water supply industry and
will provide a more meaningful analysis of those entities likely to
have the most significant economic impacts as a result of drinking
water regulations. It is the EPA's view that a population of 40,000 or
fewer (or a private PWS with annual revenue of $5,000,000 or less) is
not an appropriate criterion under the drinking water program for
differentiating private small entities from larger ones. Using such a
yardstick would not distinguish PWSs that have stronger technical
expertise and revenue sources from those that do not. Using data from
EPA's Community Water Supply Survey, a private community water system
with revenues of $5 million would correspond to a system that serves
more than 40,000 people. By contrast, community water systems that
serve between 3,300 and 10,000 have a median revenue of $605,000. As a
result, EPA believes it is reasonable to conclude that in virtually all
circumstances, systems that serve 10,000 or fewer people have annual
revenues well below $5 million. Given the economies of scale, the per
family cost of system compliance with national drinking water
regulations will be higher for systems serving populations of 10,000 or
fewer because a smaller group of people will be paying for an inelastic
set of regulatory requirements. Thus, the proposed definition will
focus the Agency's resources on the needs and concerns of the systems
that really need the assistance.
In addition to the fact that the proposed alternative definition of
``small business'' better reflects the reality of this industry, the
definition is consistent both with Congressional direction for relief
to small systems as well as EPA's historic regulatory practice. As part
of the 1996 Safe Drinking Water Act Amendments, Congress expressly
addressed the issue of small system size. Reflecting the same concerns
that underlie the RFA, Congress recognized that PWSs below a certain
size may have greater difficulty, for economic and technical reasons,
in complying with the public health provisions of the SDWA than larger
systems. Consequently, the 1996 amendments specifically provide that
for systems serving under 10,000, the Administrator may allow
alternative treatment technologies, modified monitoring schedules, and
variances from maximum contaminant levels. Congress also provided that
the Administrator may consider additional flexibility for systems that
serve 3,300 people or fewer. Specifically, the Administrator may grant
extensions of temporary exemptions from compliance with specific
drinking water standards so long as the exemption does not result in an
unreasonable risk to health. And, as discussed previously, the SDWA
provisions on which this proposed rule are based provide still an
additional level of flexibility in the report distribution requirements
to systems serving 500 or fewer persons.
EPA has historically recognized that smaller systems have financial
and technical difficulty in meeting Federal drinking water standards.
As a result of this concern, the Agency's regulations have in some
cases treated systems serving 10,000 or fewer customers differently.
For example, in 1979, EPA issued regulations for one group of
disinfection by-products (total trihalomethanes or TTHM) that exempted
systems serving 10,000 or fewer persons. In 1994, EPA proposed the
Stage 1 Disinfection/Disinfection By-Products rule, that provided
systems serving 10,000 or fewer with at least 24 months longer than
larger system to comply with the regulation depending on the system
type. EPA routinely evaluates the economic impacts of a proposed
drinking water regulation on public water systems (both publicly and
privately owned) serving 10,000 or fewer people. EPA has specifically
focused on this subgroup in the Disinfection Byproducts Stage 1, the
Interim Enhanced Surface Water Treatment Rule and the Total Coliform
Rule.
The Agency will be proposing a number of regulations over the next
five years to meet its new SDWA obligations. The use of a single
definition for purposes of the regulatory impact analysis for small
business, small governmental jurisdiction, and small organization
should decrease confusion for the regulated community and facilitate
communication.
The Agency is interested in receiving comments on the use of this
alternative definition of small entity.
C. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to OMB under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. An Information Collection Request (ICR) document
has been prepared by EPA (ICR No. 1832.01) and a copy may be obtained
from Sandy Farmer, OPPE Regulatory Information Division, U.S.
Environmental Protection Agency (2137), 401 M Street SW, Washington, DC
20460 or by calling (202) 260-2740. The information collection
requirements are not effective until OMB approves them.
This information is being collected in order to fulfill the
statutory requirements of section 114(c)(4) of the Safe Drinking Water
Act Amendments of 1996 (Public Law 104-182) enacted August 6, 1996.
Responses are |
