National Primary Drinking Water Regulations: Public Notification Rule

SUMMARY: EPA is proposing to revise the general public notification

regulations for public water systems to implement the public

notification requirements of the 1996 Safe Drinking Water Act (SDWA)

amendments. The regulations set the requirements that public water

systems must follow regarding the form, manner, frequency, and content

of the public notice. Public notice of violations is an integral part

of the public health protection and consumer right-to-know provisions

of the 1996 SDWA amendments. The public notification requirements apply

to owners and operators of public water systems which: fail to comply

with the requirements of the National Primary Drinking Water

Regulations (NPDWR); have a variance or exemption from the drinking

water regulations; or are facing other situations posing risk to public

health.

In addition, EPA is proposing to revise the State implementation

regulations allowing a State, by rule, to establish alternative public

notification requirements with respect to the form and content of the

notice. Finally, EPA is proposing to consolidate in a single subpart of

the Code of Federal Regulations (CFR) all the public notification

requirements for public water systems.

DATES: Written comments on this proposed rule must be received by EPA

on or before July 12, 1999. EPA will hold two public meetings on the

proposal:

1. May 26, 1999, 9:00 a.m., Madison, Wisconsin.

2. June 3, 1999, 10:00 a.m., Washington, D.C.

ADDRESSES: Please send written comments on this proposed rule to the

Public Notification Rule Comment Clerk (docket #W-98-19), Water Docket

(MC-4101); U.S. Environmental Protection Agency; 401 M Street, S.W.,

Washington, DC, 20460. Comments may be hand-delivered to the Water

Docket, U.S. Environmental Protection Agency; 401 M Street, S.W., Room

EB 57; Washington, D.C., 20460.

Commenters who want EPA to acknowledge receipt of their comments

should enclose a self-addressed, stamped envelope. No facsimiles

(faxes) will be accepted. Comments may also be submitted electronically

to [email protected]. Electronic comments must be submitted as

a WP 5/6/7/8 file or an ASCII file, avoiding the use of special

characters and form and encryption. Electronic comments must be

identified by the docket number (W-98-19). Comments and data will also

be accepted on disks in WP 5/6/7/8 or ASCII file format. Electronic

comments on this notice may be filed online at many Federal Depository

Libraries.

The public meetings will take place in the following locations:

Madison, Wisconsin--Best Western Inn at the Park; 22 S. Carroll Street;

Madison, Wisconsin 53703. Washington, D.C.--U.S. EPA Waterside Mall;

North Conference Center Room 1; 401 M Street, S.W.; Washington, D.C.

20460.

FOR FURTHER INFORMATION CONTACT: The Safe Drinking Water Hotline, toll

free (800) 426-4791 for general information about the public

notification regulations and to register for the public meetings and

request copies of this document. For technical inquiries, contact Carl

B. Reeverts at (202) 260-7273.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority

II. GAO Report Findings and Recommendations Regarding Public

Notification

III. Consultation With Public Water Systems, State and Local

Governments, Environmental Groups, and Public Interest Groups

IV. Discussion of Proposed Rule

A. Purpose and Applicability

B. Effective Dates and Rationale

C. Summary of Changes to Public Notification Requirements

D. Rationale for Format of Proposed Rule

E. General Provisions of Proposed Rule (Sec. 141.201)

1. Who Must Give Public Notice?

2. What Type of Public Notice is Required for Each Situation?

3. Who Must Be Notified?

F. Form, Manner, and Frequency of the Tier 1 Public Notice:

Violations With Significant Potential to Have Serious Adverse

Effects on Human Health as a Result of Short-Term Exposure

(Sec. 141.202)

1. Tier 1 Violations and Situations

2. Timing of the Tier 1 Public Notice (and Consultation

Requirement)

3. Form and Manner of the Delivery of the Tier 1 Notice

G. Form, Manner, and Frequency of the Tier 2 Public Notice:

Other Violations With Potential to Have Serious Adverse Effects on

Human Health (Sec. 141.203)

1. Tier 2 Violations and Situations

2. Timing of the Tier 2 Public Notice

3. Form and Manner of the Delivery of the Tier 2 Notice

H. Form, Manner, and Frequency of the Tier 3 Public Notice: All

Other Violations and Situations Requiring Public Notice

(Sec. 141.204)

1. Tier 3 Violations and Situations

2. Timing of the Tier 3 Public Notice

3. Form and Manner of the Delivery of the Tier 3 Notice

I. Content of the Public Notice (Sec. 141.205)

1. Standard Elements of the Public Notice (Sec. 141.205 (a)-(c))

2. Standard Health Effects Language (Sec. 141.205(d)(1))

3. Standard Language for Monitoring and Testing Procedure

Violations (Sec. 141.205(d)(2))

4. Standard Language to Encourage Customers Receiving the Public

Notice to Distribute the Notice to Other Persons Served

(Sec. 141.205(d)(3))

J. Other Public Notification Requirements

1. Notice to New Billing Units or New Customers (Sec. 141.206)

2. Special Notice to Announce the Availability of the Results of

Unregulated Contaminant Monitoring (Secs. 141.207 and 141.35)

3. Special Notice for Exceedance of the Fluoride Secondary

Maximum Contaminant Level (SMCL) (Sec. 141.208)

4. Conditions Under Which the Primacy Agency May Give Notice on

Behalf of Public Water System (Sec. 141.209)

K. Reporting to the Primacy Agency and Retention of Records

(Secs. 141.31 and 141.33)

L. Special State/Tribal Primacy Requirements and Rationale (40

CFR Part 142, Subpart B)

V. Relationship of Public Notification Regulation to Consumer

Confidence Report (CCR) Regulation

VI. Request for Public Comments on Alternatives to Proposal

A. Requiring Tier 2 Public Notice for Monitoring and Testing

Procedure Violations

B. Giving PWS Flexibility in Method of Delivery of Tier 2 and 3

Notices

VII. Cost of Rule

VIII. Other Administrative Requirements

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Executive Order 12875: Enhancing Intergovernmental

Partnerships

E. Executive Order 13084: Consultation and Coordination With

Indian Tribal Governments

F. Unfunded Mandates Reform Act

G. Environmental Justice

H. Risk to Children Analysis

I. National Technology Transfer and Advancement Act

Regulated Entities. Entities potentially regulated by this action

are public water systems (PWS). The following table provides examples

of the regulated entities under this rule. A public water system, as

defined by section 1401 of SDWA, is ``a system for the provision of

[[Page 25965]]

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.'' EPA defines

``regularly served'' as sixty or more days per year. EPA has an

inventory totaling over 170,000 public water systems nationwide.

Table of Regulated Entities

------------------------------------------------------------------------

Examples of

Category regulated entities

------------------------------------------------------------------------

State/Local/Tribal governments.................... Publicly-owned PWSs,

such as

municipalities;

county governments,

water districts,

water and sewer

authorities, state

governments, and

other publicly-

owned entities that

deliver drinking

water as an adjunct

to their primary

business (e.g.,

schools, State

parks, roadside

rest stops).

Industry.......................................... Privately-owned

PWSs, such as

private utilities,

homeowner

associations, and

other privately-

owned entities that

deliver drinking

water as an adjunct

to their primary

business (e.g.,

trailer parks,

factories,

retirement homes,

day care centers).

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

PWSs, such as water

systems on military

bases.

------------------------------------------------------------------------

The table is not intended to be exhaustive but rather provides a guide

for readers regarding entities likely to be regulated by this action.

This table lists the types of entities that EPA is now aware could

potentially be regulated by this action. Other types of entities not

listed in 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. 141.201 of the rule. If you have

questions regarding the applicability of this section to a particular

entity, consult the person listed in the FOR FURTHER INFORMATION

CONTACT section.

Additional Information for Commenters. Please send an original and

three copies of your comments and enclosures (including references) to

Public Notification Rule (docket #W-98-19) Comment Clerk, Water Docket

(MC 4101), U.S. EPA, 401 M Street, S.W.; Washington, D.C. 20460.

Comments must be received or post-marked by midnight July 12, 1999.

To ensure that EPA can read, understand, and therefore properly

respond to comments, the Agency would prefer that comments cite, where

possible, the paragraph(s) or sections in the notice or supporting

documents to which each comment refers. Comments should use a separate

paragraph for each issue discussed. The record for this rulemaking has

been established under docket number W-98-19, and includes supporting

documentation as well as printed, paper versions of electronic

comments. The record is available for inspection from 9 a.m. to 4 p.m.,

Monday through Friday, excluding legal holidays, at the Water Docket,

EB 57, U.S. EPA Headquarters, 401 M Street, S.W., Washington, D.C. For

access to docket materials, please call (202) 260-3027 to schedule an

appointment.

Consumer Right-to-Know Provisions in the Safe Drinking Water Act.

The 1996 amendments to the Safe Drinking Water Act (SDWA) 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 public notification requirement is one of six interrelated

provisions now included in the SDWA. The purpose of public notification

is to alert persons served by public water systems that a drinking

water standard has been violated and to provide information quickly to

enable consumers to take precautions to protect their health. The

public notification provision was included in the original SDWA,

enacted in 1974. The existing regulations are being revised here to

address revisions in the 1996 SDWA amendments.

Five other right-to-know provisions were added to the SDWA through

the 1996 SDWA amendments.

Community water systems are now required to prepare and

provide to their customers annual Consumer Confidence Reports (CCR) on

the quality of the water delivered by the systems. The CCR is the

centerpiece of the public right-to-know provisions in the SDWA. The

information contained in these reports can raise consumers' awareness

of where their water comes from, show them the steps that are necessary

to deliver safe drinking water to their homes, and educate them about

the importance of source water protection for assuring safe drinking

water. The CCR and the public notification rule are interrelated: an

annual summary of violations occurring during the year is one of the

elements of the CCR. EPA's regulation requiring the annual CCR was

promulgated on August 19, 1998 (40 CFR part 141, Subpart O; 63 FR

44511). All community water systems must complete the first CCR by

October, 1999.

Primacy agencies are required to prepare and release an

annual report listing violations of national primary drinking water

regulations (NPDWR) which occurred in the last year in the public water

systems within their jurisdictions. EPA is also required to issue an

annual report which summarizes and evaluates the State reports and

makes recommendations concerning the resources needed to improve

compliance with the SDWA. The first State violation reports were

released on January 1, 1998. EPA's first report was released in July,

1998.

Primacy States are required to make completed source water

assessments available to the public. 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 those boundaries. The source

water assessments are to be completed by the States for all public

water systems by 2003.

EPA is required to develop and make available a national

contaminant occurrence database 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. The initial version of the national contaminant

occurrence database is scheduled for release in August, 1999.

Primacy agencies are required to notify the public of

proposed decisions to allow a variance to the federal drinking water

standards involving their public water system. Public water systems

serving 10,000 or fewer persons that cannot meet the requirements of

EPA national primary drinking water regulations (NPDWRs), using

technology identified in the NPDWR, may apply for a variance to use an

alternate technology

[[Page 25966]]

to meet the regulation. Consumers served by that water system will be

provided an opportunity to comment on or 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 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, it can ensure that the choices made--particularly by EPA

and the States, but also by water systems--respond to the public's

needs and concerns within the constraints of the SDWA.

I. Statutory Authority

Section 114 of the Safe Drinking Water Act Amendments of 1996

(Public Law 104-182), enacted August 6, 1996, amended Section 1414(c)

of the Act (42 U.S.C. 300g-3(c)). Sections 1414 (c)(1) and (c)(2) were

significantly revised and require EPA to amend the existing public

notification regulations. The amended rules are intended to give

consumers more accurate and timely information on violations, taking

into account the seriousness of any potential adverse health effects

that may be involved. There is no deadline for promulgating the revised

public notification rule, but EPA intends to complete this rulemaking

by the end of 1999 to allow States and the regulated community to

coordinate public notification implementation with implementation of

the Consumer Confidence Report.

The public notification (PN) provisions were part of the original

SDWA in 1974 and were subsequently modified in the 1986 SDWA

amendments. The public notification regulations currently in place were

promulgated in 1987 and became effective in 1989 (40 CFR 141.32). The

existing rule remains in place until the new rule is promulgated.

SDWA Section 1414(c)(1) establishes who must give public notice,

under what circumstances a notice must be given, and who must receive

the notice. Section 1414(c)(1)(A) requires that all public water

systems give notice to all persons served of any failure to comply with

any national primary drinking water regulations (NPDWR), including any

required monitoring. Section 1414(c)(1)(B) further requires a public

water system to provide a notice when it is operating under a variance

or exemption, and when a water system fails to comply with the

requirements of a variance or exemption. Section 1414(c)(1)(C)

authorizes EPA, at the Administrator's discretion, to require public

water systems to provide notice of the concentration level of any

unregulated contaminant monitored under EPA regulations. Except for the

addition of paragraph (C) of Section 1414(c)(1), these requirements are

unchanged from the previous SDWA.

Section 1414(c)(2) sets the specific requirements for the form,

manner, and frequency of the notice. Section 1414(c)(2)(A) requires EPA

to issue regulations, after consultation with the States, that

prescribe the detailed public notification requirements. The

regulations must provide for different frequencies of notices based on

the persistence of the violations and the seriousness of any potential

adverse health effects that may be involved. Except for now requiring

EPA to consult with the States prior to promulgating the revised

regulations, the general directions to EPA for issuing regulations are

unchanged from the previous SDWA.

Section 1414(c)(2)(B) enables States, at their option, to establish

alternate requirements with respect to the form and content of the

public notice, as long as the alternative State program provides the

same type and amount of information as required under the EPA

regulations. This Section was added with the 1996 amendments.

Section 1414(c)(2)(C) directs EPA to issue regulations which

require public water systems to distribute a notice within 24 hours to

all persons served for violations with potential to have serious

adverse effects on human health from short-term exposure. The public

water system is also required to send the same notice to the primacy

agency and to consult with the primacy agency within the same 24-hour

period on any additional public notice requirements. This section is a

new statutory requirement.

Section 1414(c)(2)(D) directs that EPA's regulations require public

water systems to provide written notice to each person served for each

violation not covered under Section 1414(c)(2)(C). The Section

specifies that the notice may be: (1) in the first bill, if any, after

the violation; (2) in an annual report issued no later than one year

after the violation; or (3) by mail or direct delivery as soon as

practicable, but no later than one year after the violation. This

section significantly revises and simplifies the previous statutory

requirements on the form, manner, and timing of the notice.

Section 1414(c)(2)(E) allows the Administrator the option to

require the public water system to give notice to persons served of the

results of unregulated contaminant monitoring required by EPA under

1445(a). EPA will soon propose a revised unregulated contaminant

monitoring regulation (UCMR) This section is new under the 1996 SDWA

amendments.

This rule, when issued in final form, is intended to fulfill the

rulemaking requirements outlined in amended sections 1414(c)(1) and

1414(c)(2).

II. GAO Report Findings and Recommendations Regarding Public

Notification

In June, 1992, the General Accounting Office (GAO) issued a report

entitled: ``Drinking Water Consumers Often Not Well Informed of

Potentially Serious Violations'' (GAO/RCED-92-135). GAO found:

Low compliance with the existing public notification

requirements on the part of public water systems and limited compliance

tracking and enforcement on the part of EPA and the States;

Aspects of the requirements may be a complicating factor,

especially for small systems, making it difficult to effectively

communicate important information to consumers; and

Notices tended to be too technical, provide little

guidance on actions to take in response to violations, and not focus

enough attention on the most serious violations.

GAO made several recommendations to improve the public notification

process, including:

Changing the regulations to focus notification on more

serious violations by allowing water systems to consolidate notices for

less serious violations;

Revising the health effects language to be less technical;

and

Better oversight by EPA and the States.

EPA used the GAO findings and recommendations from this audit as

one of the principal starting points in developing the proposed rule.

III. Consultation With Public Water Systems, State and Local

Governments, Environmental Groups, and Public Interest Groups

Today's proposal is based on input from a broad range of

stakeholders from the public and private sectors. The Agency has

actively involved the States as partners in the rule development and

has held a series of stakeholder meetings throughout the country to

gain input and information from other groups and individuals.

First, Section 1414 (c)(2)(A) requires that EPA consult with the

States before

[[Page 25967]]

revising the public notification regulation. Accordingly, EPA met very

early in the regulatory development process with a group of States, as

part of the early involvement meetings set up by the Association of

State Drinking Water Administrators (ASDWA), to develop the scope of

the process and identify significant issues under the new statute.

States participated throughout the development process as members of

the EPA regulation workgroup. EPA provided briefings to ASDWA on

request several times during the past year as the development of the

rule moved forward.

Second, in addition to the active involvement and consultation with

the States, EPA held a series of well-attended stakeholder meetings

early in the process to solicit input on the scope of the rule, issues

with the current rule and how they could be corrected, and how the

statutory changes should be covered in the regulation. Over a period of

four months in late summer and fall of 1997, EPA held stakeholder

meetings in Indianapolis, Indiana, Washington, D.C., and Seattle,

Washington. The participants at these meetings ranged from State and

local government officials (including water utilities) to risk

communication experts and representatives of public interest groups.

During this same period, meetings were also held with the Washington

Drinking Water Advisory Committee, a statewide group of managers from

various public and private entities, and a group of utility and State

managers from several Midwestern States. Several recurring themes

surfaced during these meetings:

Public notices are extremely important to consumers; they

must reach the appropriate audiences in a timely fashion to protect

public health and allow consumers to make choices.

It appears that the public notification process has not

been effective (i.e., based on the results of the 1992 GAO audit and

stakeholder experiences); a new regulation has to be less complex and

better targeted to the seriousness of the violation to be effective.

Public notices and their follow-up must be tailored

carefully to the specific situation to be effective: it depends on the

specific violation; the type and size of the water system; the affected

population; and the availability of communication outlets. Therefore,

any EPA regulation must be flexible enough to accommodate local

situations.

The timing and content of the public notices should be

differentiated based on the severity of the violations.

Public notices of violations should never be the

centerpiece of a public water system's consumer awareness approach. EPA

should actively encourage water systems to closely coordinate the

public notice requirements with the Consumer Confidence Report and

other longer term education strategies.

Third, EPA has begun a new initiative outside the rulemaking

process, in collaboration with the States, utilities, and public

interest groups, to develop a public notification handbook. The

handbook will provide public notification ``templates'' for public

water systems to help them respond quickly to the many different

violation circumstances they may encounter. This initiative, which

involves a series of focus group meetings with the public and others to

assess effectiveness, provides ``real world'' experience in advance of

the final rulemaking. The Handbook is not intended as an additional set

of regulatory requirements, but rather as a resource that public water

systems may use at their discretion to craft effective and timely

notices. The draft handbook is being issued concurrently with the

proposed rule. It will be announced through the Federal Register and

copies will be mailed to stakeholders and made available through EPA's

Internet home page.

Finally, EPA continues to provide information to our stakeholders

on the status of the rulemaking. EPA periodically provides updates to

the National Drinking Water Advisory Council and informational

briefings, upon request, to other stakeholder groups.

IV. Discussion of Proposed Rule

A. Purpose and Applicability

The rule being proposed today revises the minimum requirements

public water systems must meet regarding the form, manner, frequency,

and content of the public notification. Public water systems must give

notice to all persons served for all violations of National Primary

Drinking Water Regulations (NPDWR) and for other situations posing a

risk to public health from the drinking water. The term NPDWR

Violations is used in the public notification regulations to include

violations of Maximum Contaminant Level (MCL), Maximum Residual

Disinfectant Level (MRDL), treatment technique (TT), monitoring, and

testing procedure requirements. Public notice is not required, for

example, for violation of the new Consumer Confidence Report

regulation. See Table 1 and Appendix A of the proposed rule for the

NPDWR violations and other situations requiring a public notice.

Violations not listed in Appendix A do not require a public notice

under Subpart Q.

The rule would apply to existing and new public water systems that

violate a NPDWR or have other situations that pose a risk to health

from the drinking water. A ``public water system,'' as defined in 40

CFR 141.2 , is ``a system for the provision to the public of water for

human consumption through pipes or, after August 5, 1998, other

constructed conveyances, if such system has at least fifteen service

connections or regularly serves at least twenty-five individuals daily

at least 60 days out of the year.''

A public water system is either a community water system (CWS) or

non-community water system (NCWS). A CWS, as defined in Sec. 141.2,

means ``a public water system which serves at least 15 service

connections used by year-round residents or regularly serves at least

25 year-round residents.'' A NCWS means ``a public water system that is

not a community water system.''

Non-community water systems are further broken out in the drinking

water regulations into transient non-community water systems (TWS) and

non-transient noncommunity water systems (NTNCWS). A NTNCWS is defined

by EPA under Sec. 141.2 as ``a public water system that is not a

community water system and that regularly serves 25 of the same people

over six months of the year.'' An example is a school or business that

has its own water well. A TWS is defined by EPA under Sec. 141.2 as ``a

noncommunity water system that does not regularly serve 25 of the same

persons over six months of the year.'' An example is a roadside rest

stop with its own water well.

For illustration purposes, Table A provides a summary of the number

of public water systems, broken out by type of system, the number of

these systems with violations during FY 1996, and the total number of

violations during the same period. Table A shows that 46,572 of the

172,248 public water systems had one or more violations in FY 1996.

Overall, the 46,572 public water systems with violations committed

243,604 violations in FY 1996. The overwhelming majority of these

violations were failure to monitor according to the regulations.

Although not all violations require a separate public notice, each

violation requires the public water system to comply with the public

notification requirements.

[[Page 25968]]

Table A.--Number of Water Systems Regulated Under Public Notification

Rule in FY 1996

------------------------------------------------------------------------

Systems

Type of water system Number of with Violations

systems violations

------------------------------------------------------------------------

1. Community Water Systems (CWS). 55,427 14,620 126,853

2. Nontransient Noncommunity 20,237 6,227 51,796

Water Systems (NTNCWS)..........

3. Transient Noncommunity Water 96,584 25,725 57,565

Systems (TWS)...................

--------------------------------------

Public Water Systems (PWS)....... 172,248 46,572 236,214

------------------------------------------------------------------------

Source: PWS Inventory and Compliance Statistics: FY 1992-FY 1996.

As shown in Table A, 55,427 of the regulated public water systems

are CWSs. CWSs must comply with all the NPDWRs in effect, currently

covering 80 separate contaminants. CWSs serve residential populations

and range from large municipal systems that serve millions of persons

to small systems, which serve fewer than 100 persons. CWSs can be

further categorized as publicly-owned systems, privately-owned systems,

and systems which provide water as an ancillary function of their

principal purpose. In FY 1996, 14,620 CWSs committed 126,853

violations. Approximately 80 percent of community water systems serve

fewer than 3,300 people.

Of the regulated public water systems, 20,237 are NTNCWS. Virtually

all NTNCWSs provide water as an ancillary function of their principal

purpose (for example, schools, day-care facilities, factories). NTNCWSs

must comply with the same national primary drinking water regulations

as community water systems. During FY 1996, 6,227 NTNCWSs committed

51,796 violations. Approximately 99 percent of NTNCWSs serve fewer than

3,300 people.

The balance of the regulated public water systems (96,584) are TWS.

Virtually all TWSs provide water as an ancillary function of their

principal purpose (for example, highway rest stops, gas stations, state

parks). TWSs must comply only with existing national primary drinking

water regulations where short-term violations may pose a health

threat--total coliform, nitrate, nitrite, combined nitrate+nitrite, and

the surface water treatment rule. In FY 1996, 25,725 TWSs committed

57,565 violations. Over 99 percent of TWSs serve fewer than 3,300

people.

B. Effective Dates and Rationale

EPA is proposing that the revised public notification rule become

effective no later than two years after the final rule is published in

the Federal Register or on the date the primacy agency's revised

regulation becomes effective, whichever comes first. Setting the two-

year effective date matches the time period allowed for States under

the primacy regulations (40 CFR Part 142, Subpart B) to adopt new or

revised National Primary Drinking Water Regulations (NPDWRs). As the

public notification rule is not an NPDWR, EPA has discretion to set an

effective date for the revised rule. EPA believes it is appropriate to

set the effective date consistent with the basic two-year time period

allowed States to adopt the revised regulation. This coordinated phase-

in of the new public notification requirements in each State will be

more efficient and will avoid the potential confusion of having

different State and EPA requirements in effect at the same time.

EPA is proposing to make the rule effective in a State as soon as

the State's revised regulation is effective under its primacy program.

In practical terms, this will mean that the new requirements will go

into effect at different times nation-wide based on the speed of the

State adoption of the new requirements. Where EPA directly implements

the program (such as in Wyoming and Washington, D.C., and on Indian

lands), the revised rule will go into effect 90 days after EPA

publication of the final rule. Regardless of the primacy situation, the

rule would go into effect after two years for all water systems, even

in those States that request and are granted an extension to adopt the

revised regulation beyond the basic two-year time period.

The revised public notification rule will apply to new and existing

violations of NPDWRs, variances or exemptions granted by a primacy

agency, and violations of conditions of an existing variance or

exemption after the effective date of this rule. However, EPA does not

intend to require that public water systems provide initial public

notices under the new rule for violations and situations where the

initial public notice has already been given under the regulations in

place at the time. Unless the primacy agency makes a different

determination on a case-by-case basis, the revised rule will apply to

repeat notices for existing violations or any public notice

requirements applying subsequent to the public notices given under the

old rule.

EPA considered a number of options on the effective date of the

rule before settling on the two-year time frame. EPA believes that the

new regulation, consistent with the revised statute, will make the

public notification process simpler, more efficient, and better

targeted than the current regulation. In this respect, the sooner the

new rule goes into effect, the more effective the public notification

process will be. However, because the proposed rule replaces a State

program already in operation, applying the new rule to public water

systems well in advance of the change in the State program would be

confusing to the regulated community and the public. It could result in

two sets of public notice requirements (i.e., the current State rule

and the new EPA rule) being in effect for the public water systems

during this transition period. Because the intent is still to replace

the current regulation with the new streamlined rule as soon as

possible, comments are requested on the proposed effective date.

Suggestions on other options to put the new regulations into effect

sooner are welcome.

C. Summary of Changes to Current Public Notification Requirements

The proposed rule is substantially different from the public

notification regulation currently in effect. Table B is a summary of

the major differences between the current regulation and the proposed

rule.

[[Page 25969]]

Table B.--Summary of Differences Between Proposed Rule and Existing Rule

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Statutory authority (SDWA, as

amended in 1996) Current rule (Sec. 141.32) Proposed rule (part 141, subpart Q)

----------------------------------------------------------------------------------------------------------------

1414(c)(1) (Sec. 141.32(a) and (b)) Owner or (Secs. 141.201(a) and 141.202(a))

Each owner or operator of a PWS operators of PWSs must notify for Includes violations from current

shall give notice of NPDWR the following violations/ rule and adds broader definition of

violations, levels of unregulated situations: waterborne disease outbreak, adds

contaminants, and existence of a Maximum contaminant levels (MCL) new IESWTR and DBP standards, moves

variance or exemption. Treatment technique fluoride SMCL and unregulated

Testing procedure contaminant monitoring public

Monitoring notices from other parts of the

Operation under a variance or regulations. Adds a new Appendix A

exemption to the rule listing all violations

Noncompliance with variance or and situations where public

exemption schedule notification is required.

1414(c)(2)(A) (Secs. 141.32 (a)(1)(iii) and (Sec. 141.201(b)) Tiers are defined

Manner, frequency, and form are 141.32(a) and (b)) There is a three- based on seriousness of the

prescribed based on seriousness and tier system, although tiers are not violation or situation and of

frequency of violations. named. potential health effects, and all

Public notices are divided into violations or situations are

three tiers: violations of MCLs assigned to a tier (Appendix A)

that may pose an acute risk to Tier 1 notice for violations or

human health; MCLs, treatment situations with significant

technique, and variance or potential to have serious adverse

exemption schedule violations; and effects on human health as a result

other violations (including of short-term exposure;

monitoring) and operation under a Tier 2 notice for all other

variance or exemption. violations or situations with

potential to have serious adverse

effects on human health; and

Tier 3 notice for all other

violations and situations not

included in Tier 1 and Tier 2.

1414(c)(2)(C)(iii) (Sec. 141.31(d)) System must (Sec. 141.31(d)) Revised to require

Notice must be provided to provide a copy of the notice to the PWS to submit a certification and a

Administrator or primacy agency State within 10 days. copy of the notice to the primacy

agency within 10 days.

(Secs. 141.202(b) and 141.201(c))

New section added to require

consultation with primacy agency

within 24 hours for violations or

situations requiring a Tier 1

notice.

1414(c)(2)(C)(1) (Sec. 141.32(a)(1)(iii)(A)-(D) (Sec. 141.202) Tier 1 notice--

For violations with potential to Acute violations include Violations and situations include

have serious adverse effects on (1) Any violations specified by those defined as acute in the

human health as a result of short- State current rule, plus: an expanded

term exposure, notice must be (2) Nitrate/nitrite MCLs definition of waterborne disease

distributed as soon as practicable (3) Fecal coliform/ E. coli outbreak to include all water

but no later than 24 hours after (4) Waterborne disease outbreak in systems; chlorine dioxide MRDL

the occurrence of the violation unfiltered systems subject to violation under new DBP rule where

Surface Water Treatment Rule samples taken in the distribution

system exceed the standard or where

samples are not taken in the

distribution system; and violation

of the testing procedures to

determine if fecal coliform is

present after the presence of total

coliform in the distribution system

is confirmed.

Provide copy of notice to radio and Timing revised to require notice

TV stations within 72 hours, or by within 24 hours; must be by

posting or hand delivery within 72 electronic media, posting, or hand

hours. Posting must continue as delivery, plus any additional

long as the violation exists. methods necessary to reach all

persons served.

Additional notices: by newspaper Revised to not require additional

within 14 days or posting or hand notices for same violation,

delivery if no newspaper is deferring instead to the primacy

available; by mail within 45 days agency to set additional

(may be waived if state determines requirements (including additional

violation has been corrected); and notices) on a case-by-case basis.

repeat notice every three months

thereafter.

1414(c)(2)(D)(1) (Sec. 141.32)(a)) For MCL, (Sec. 141.203) Tier 2 notice

Regulations shall specify treatment technique, and variance includes those described in Sec.

notification procedures for or exemption schedule violations. 141.32(a) of the current rule, plus

violations other than Tier 1; the new standards under the IESWTR

notice shall be in written form and DBP rules, and serious and

persistent monitoring and testing

procedure violations, as determined

by the primacy agency .

[[Page 25970]]

By newspaper within 14 days or by Revised to require notice within 30

posting or hand delivery if no days unless the primacy agency

newspaper is available. allows an extension of up to three

months for specific circumstances.

Unless primacy agency directs

otherwise, CWS must use mail or

direct delivery, and other methods

reasonably calculated to reach

persons served. NCWS must use

posting, direct delivery, or mail,

and other methods reasonably

calculated to reach persons served.

Additional notices: by mail within The initial notice does not require

45 days (may be waived if state multiple methods of delivery unless

determines violation has been it is needed to reach persons

corrected), and repeat notice every served. Repeat notice required

three months thereafter by mail or every three months where violation

hand delivery. persists, unless the primacy agency

determines less frequent repeat

notice (no less frequent than

annually) is warranted because of

specific circumstances. Method of

delivery for repeat notice is not

specified.

(Sec. 141.32(b) For monitoring and (Sec. 141.204) The violations and

testing procedure violations, and situations requiring a Tier 3

operation under variance or notice are the same as those

exemption. described in Sec. 141.32(b) of

current rule, with the addition of

a notice requirement for ``other

violations'' determined by the

primacy agency to require a Tier 3

notice.

By newspaper within three months of Revised to require notice within one

the violation or the granting of year. Unless primacy agency directs

variance or exemption, or by hand otherwise, CWS must use mail or

delivery or posting if no newspaper direct delivery, and other methods

is available. State may allow less reasonably calculated to reach

frequent public notice (up to 1 persons served. NCWS must use

year) for minor monitoring posting, direct delivery, or mail,

violations. and other methods reasonably

calculated to reach persons served.

CCR or other annual reports may be

used, as long as notice in CCR

meets PN requirements.

Repeat notice every three months Repeat notice annually; no method

thereafter by mail or hand specified.

delivery.

Notice to new billing units (not in (Sec. 141.32(c)) Community water (Sec. 141.206) Revised to require

statute) system must give a copy of the most notice for any outstanding

recent public notice for any violation, including monitoring and

outstanding violation of any MCL, testing procedure violations.

any treatment technique Revised to require non-community

requirement, or any V&E schedule. systems to keep notice posted for

as long as violation exists, even

if notice was initially hand-

delivered or otherwise distributed.

1414(c)(2)(C)(ii) and (Sec. 141.32(d)) Each notice must (Sec. 141.205) Adds ``when

1414(c)(2)(D)(ii) provide a clear explanation of the violation was found'' and ``when

Content of notices violation, potential health system expects to return to

effects, population at risk, steps compliance'' to content elements.

being taken to correct violation, New requirement to include

telephone number of the owner, ``contaminant level''. Adds new

operator, or designee of the public element requiring standard language

water system, necessity for seeking asking bill paying customers to

alternative water supplies, if any, provide copies of notice to other

and any preventive measures persons served who may not have

consumers should take until the received the notice directly from

violation is corrected. the PWS.

Also, adds minimum content elements

for notices of operation under

variance or exemption, which

parallels CCR requirements. No

longer requires health effects

language for operation under a

variance or exemption.

(141.32(e)) Systems must include (New Appendix B) Revises standard

standard health effects language health effects language.

for MCL, treatment technique, Adds standard language for

variance or exemption schedule monitoring and testing procedure

violations, and operation under a violations.

variance or exemption.

Special notice for exceedance of (Sec. 141.32(f)) Notice of SMCL (Sec. 141.208) Moved to new Subpart

Fluoride Secondary Maximum exceedances required within 12 Q, mandatory language is simplified

Contaminant Level (SMCL) (not in mos.; shall contain language in

statute) Sec. 143.5(b).

[[Page 25971]]

Public notice by primacy agency (not (Sec. 141.32(g)) The State may give (Sec. 141.209) No change.

in statute) notice to the public on behalf the

public water system if the State

complies with the requirements of

Sec. 141.32. However, the owner or

operator of the public water system

remains legally responsible.

1414(c)(2)(E) (Sec. 141.35(d)) Written notice of (Sec. 141.207) Revised to require

Administrator may require notice of availability of results within notice of availability of results

levels of unregulated contaminants three months after system receives within 12 months, following Tier 3

monitored under section 1445(a) results (surface water systems only delivery requirements; deletes Sec.

need to notify after the first 141.35(d).

quarter of monitoring).

1414(c)(2)(B) (Sec. 142.10(a)) Authority to (Sec. 142.10(a)) No change.

States may establish alternative require public water systems to

notification requirements give public notice that is no less

stringent than the EPA requirements

in Secs. 141.32 and 142.16(a).

(Sec. 142.16(a)) If the state (Sec. 142.16(a)) Deletes current

chooses to decrease notice requirement. Reaffirms under Sec.

frequency for minor monitoring 142.16(a)(1) the two year deadline

violations it must submit to EPA (with possible 2-year extension)

the criteria used to decide the for State primacy program revision.

decreased frequency and which New 142.16(a)(2) added to require

violations are minor, and it must State to include in primacy program

submit the new notice requirements. enforceable requirements and

procedures when State opts to use

its discretion to deviate from EPA

rule.

New 142.16(a)(3) added to allow

primacy agencies to establish

alternative public notification

requirements with respect to form

and content of notice, consistent

with 1414(c)(2) (B) of 1996 SDWA

amendments.

----------------------------------------------------------------------------------------------------------------

D. Rationale for Format of Proposed Rule

EPA is proposing a new ``plain language'' format for the revised

public notification regulation, consistent with the requirements

outlined in the June 1, 1998 memorandum sent by President Clinton to

all Federal agencies and the ongoing Agency initiative to take steps to

improve both the clarity and comprehension of regulatory language. The

difficulty in understanding federal regulations has been a longstanding

criticism of federal agencies, including EPA. The current public

notification rule, in particular, has been criticized by GAO and others

as being too complex and confusing to implement. This criticism was

viewed by GAO in its 1992 report as one of the reasons the public

notification process is ineffective.

The proposed rule is structured in a question and answer format.

Where possible, tables were inserted in the rule to make the various

requirements easier to understand. In addition, EPA is proposing that

an appendix be added to list the acronyms used in the public

notification regulation. (See Appendix C to 40 CFR Part 141, Subpart

Q.)

EPA welcomes comments on the new format and is soliciting ideas on

ways to make the public notification regulation more readable by the

regulated community:

Have we organized the material to suit your needs?

Are the requirements in the rule clearly stated?

Does the rule contain technical language or jargon that

isn't clear?

Would a different format (grouping and ordering of

sections, use of headings, paraphrasing) make the rule easier to

understand?

Would more (or shorter) sections be better?

Could we improve clarity by adding tables, lists, or

diagrams?

What else could we do to make the rule easier to

understand?

E. General Provisions of Proposed Rule (Sec. 141.201)

Today's proposal would replace the existing public notification

regulation with an entirely new subpart (40 CFR Part 141, Subpart Q),

which incorporates the new provisions under sections 1414(c)(1) and

(c)(2) of the SDWA, as amended in 1996, and would streamline the

requirements to more effectively meet the objectives of the public

notification process. Informing consumers of violations has been a key

feature of the SDWA since the statute was first enacted in 1974.

The primary purpose of public notification is to inform consumers

of any potential adverse health effects related to the drinking water

provided to them and of the steps they can take to minimize the impact.

Public notification also addresses the fundamental issue of consumer-

right-to-know, providing information on a timely basis that allows

consumers to make informed choices about use of their drinking water.

The statute requires EPA to issue regulations prescribing the manner,

frequency, form, and content for giving public notice. The proposed

rule would revise the existing public notification requirements:

To focus the public notification on the violations posing

the greatest potential risk to public health,

To give greater latitude to States to develop alternative

programs to meet their unique needs;

To provide greater flexibility to public water systems to

tailor distribution of the notice to best reach the affected

population; and

To encourage water systems to use the annual Consumer

Confidence Report or other annual reporting mechanism to give the

initial public notice for less serious violations.

These changes to the regulation are intended to better meet the

purposes of the public notification process to better

[[Page 25972]]

inform consumers about drinking water issues affecting their health.

1. Who must give public notice? EPA is proposing to amend the

current regulatory language to explicitly require public notice for

``other situations determined by the primacy agency to have potential

of serious adverse effects on human health.'' (See Table 1 of 40 CFR

141.201 of the proposed rule.) Other than this addition, EPA is

proposing to maintain the current regulatory requirements defining who

must give public notice and in what situations it must be given. Public

water systems are required under the proposed rule, as now, to give

public notice to persons served by the system for any failure to comply

with a National Primary Drinking Water Regulation (NPDWR), including

any monitoring and testing procedure requirements, and where the water

system is operating under a variance or exemption to the NPDWR. The

proposal will include the public notification provisions for the new

Disinfection Byproduct (DBP) and Interim Enhanced Surface Water

Treatment Rule (IESWTR) regulations which were published on December

16, 1998 (63 FR 69389 and 69477).

The proposed new language to this section enables the primacy

agency to require public notice for other situations not explicitly

listed under Sections 1414(c)(1) and (c)(2) of the SDWA. EPA recognizes

that Sections 1414(c)(1) and (c)(2) limits public notification

requirements to violations of NPDWRs or required monitoring, variances

and exemptions, and unregulated contaminant monitoring results. Thus,

the situations identified for public notice in Sections 1414(c)(1) and

(2) are limited to violations or notification concerning existing

drinking water regulations. However, in some cases, such as in the

Milwaukee cryptosporidium outbreak, dangerous situations may occur

without a violation of existing drinking water requirements. In these

cases as well, public notification may be critical to informing the

public of the need to take immediate steps to avoid health risks. EPA

is proposing to add such situations to the list of required public

notices in this rule. The Agency believes that Section 1445(a) of the

SDWA provides ample additional authority for requiring public

notification of situations other than those listed in Section

1414(c)(1) and (c)(2) that are deemed by EPA in its regulations or by

the primacy agency on a case-by-case basis to present a potential

danger to drinking water consumers.

To improve the clarity and understanding of when a public notice is

required, the proposed rule also consolidates into a new subpart (Part

141, Subpart Q) other special public notice requirements (i.e.,

exceedance of the fluoride secondary MCL; the notice of the

availability of the results of unregulated contaminant monitoring

data). A list of all violations and situations requiring a public

notice, including the specific regulatory citation, is presented in a

detailed Appendix A attached to the rule. Appendix A is intended to be

updated as new NPDWRs are promulgated or when other situations arise

where a public notice is required. A public notice is only required for

the violations or other situations listed in Appendix A (unless the

primacy agency requires notice for other situations.).

EPA is asking for comment on the proposed addition of explicit

regulatory language enabling the primacy agency (including EPA in its

regulations) to require public notification for other situations it

believes have the potential for serious health risk. EPA is also asking

for comment on its proposal to present in tabular form all the

situations requiring a public notice and its plans to update Appendix A

as new rules are promulgated.

2. What type of public notice is required for each situation? EPA

is proposing to divide the public notice requirements into three tiers:

Tier 1 Public Notice, for violations and situations with

significant potential to have serious adverse effects on human health

as a result of short-term exposure;

Tier 2 Public Notice, for other violations and situations

with potential to have serious adverse effects on human health; and

Tier 3 Public Notice, for all other violations and

situations requiring a public notice not included in Tier 1 and Tier 2.

The form, manner, and frequency of the public notice is determined

by the tier the violation or situation is assigned. Appendix A assigns

each violation and situation to one of the three tiers. The specific

requirements for the public notice in each tier are defined under

Secs. 141.202, 141.203, and 141.204 of this proposed rule.

The proposed three-tier approach to public notification will be

consistent with the intent of the new public notification provisions in

the 1996 SDWA amendments. Section 1414(c)(2)(A) directs the

Administrator to issue regulations that provide for different

frequencies of notice based on the differences between intermittent and

persistent violations and the seriousness of any potential adverse

health effects. Section 1414(c)(2)(C) sets very specific requirements

for violations with potential to have serious adverse effects on human

health from short-term exposure. This includes a new requirement that

such notices be distributed to all persons served no later than 24

hours after the occurrence of the violation. Section 1414(c)(2)(D)

requires EPA to define in its regulations the notification procedures

for all violations not included under subparagraph (C). This section

requires that such procedures specify that the water system provide

written notice to each person served in either: (1) the first bill

prepared, if any, after the violation; (2) in an annual report issued

no later than one year after the violation; or (3) by mail or direct

delivery as soon as practicable, but no later than one year after the

violation.

EPA was guided by several objectives in developing and evaluating

options to meet the provisions under Sections 1414(c)(1) and (c)(2) of

the 1996 SDWA amendments. The proposed regulation reflects these

baseline objectives:

First, to be effective in meeting the statutory mandate

under 1414(c)(2)(C) to get the notice out no later than 24 hours for

the most serious violations affecting health from short-term exposure,

the public notice regulations had to focus sharply on a very limited

set of violations. EPA believes that requiring the 24-hour notice for

too many violations would be confusing, complex, and more difficult to

implement. It might also dilute the effectiveness of the 24-hour

notices if customers receive too many of them. Therefore, EPA decided

in its proposal to limit the requirements for 24-hour notices to those

violations with very strong evidence of serious short-term health

risks. Other violations and situations that may require a 24-hour

notice on a case-by-case basis would be handled by the primacy agency.

EPA recognizes that there are other violations with possible short-term

health effects which have not been included in Tier 1. But EPA believes

these violations do not routinely require the same urgency as those

violations where the evidence of serious short-term risk to health is

strong. Examples of such violations include Total Coliform Rule (TCR)

violations where no fecal coliform is present and surface water

treatment rule treatment technique violations.

Second, to address the notice requirements for all the

other violations, the public notice regulation has to take into account

the differences in risk between the different types of

[[Page 25973]]

violations. A sharp separation is clear between the violations that may

pose a direct risk due to exposure to harmful contaminants (either from

short-term or chronic exposure) and the vast majority of violations

which pose no known health risk in themselves. Examples that may pose a

direct health risk are:

--Violations of the maximum contaminant levels (MCLs) and maximum

residual disinfectant levels (MRDLs), because the contaminant was

actually found in the drinking water at harmful levels; and

--Violations of treatment technique (TT) requirements, because such a

violation indicates a deficiency in water system treatment or

operations that increases the likelihood that contaminants may be in

the drinking water.

Violations that are not directly related to health risks include

the majority of the monitoring and testing procedure violations, which

are onetime violations resolved during the next monitoring period. The

purposes of the public notice for the two groups are different. Notices

for MCL, MRDL, and TT violations are necessary to inform consumers

where the probability of direct exposure to harmful contaminants is

elevated, to give them an opportunity to take action to avoid continued

exposure. Timing of the notice is important. Notices for monitoring

violations in most cases are necessary to meet a consumer right-to-know

objective, separate from the known or potential health risks from the

drinking water. An annual summary for these violations is adequate.

Third, to be effective, the public notice regulation has

to be easy to understand, be simple to implement in practice, and must

provide States and water systems enough flexibility to tailor their

public notices to the specific local situation. EPA is well aware that

the complexity of the current public notification regulations is a

contributing factor in the inability of public water systems to meet

the legislative objectives.

EPA considered a number of options for meeting these objectives.

Other than the proposed three-tier option, the option most seriously

considered was to define a two-tier public notice structure, separating

violations with potential short-term health effects from all other

violations. The first tier would incorporate the provisions under

1414(c)(2)(C). The regulations for the second tier would either

prescribe the form, manner, and frequency of the notice or simply

incorporate the statutory language under 1414(c)(2)(D). This option

would allow the primacy agencies to define additional notice

requirements to separate the violations posing potential health risks

from other administrative and technical violations. Where primacy

agencies had no alternative program, the discretion on the notice

requirements for these other violations would be left to the individual

water systems. The advantages of such a two-tier public notice

structure are that it would make the federal requirement simple for

water systems to understand, would leave greater flexibility to the

States to tailor the public notice requirements to their specific

needs, and would probably result in fewer separate notices for

violations in the lower tier. This might lead customers to take notices

for violations in the upper tier more seriously.

However, EPA is not proposing this two-tier structure. EPA and most

of the stakeholders EPA consulted believe there are compelling reasons

for the EPA regulation to differentiate among the lower tier violations

based on the seriousness and urgency of the risk. These violations span

a wide range of potential health risks. A ``middle-tier'' public notice

requirement between the 24-hour notice and the annual notice is

appropriate for those lower-tier violations and situations that may

have the potential for serious adverse effects on human health, but are

not significant or urgent enough to require an emergency notice. EPA

believes a three-tier system of public notification would:

Effectively separates the form, manner, content, and

frequency of public notice based on the seriousness of any potential

adverse health effects (as mandated under 1414(c)(2)(A));

Meets the clear objectives and purposes of public

notification;

Be simple and straightforward to implement; and

Meets the requirements of the statute.

EPA requests comment on whether the two- or three-tiered structure

would be more appropriate for the final EPA regulation and what the

advantages and disadvantages of the preferred tier structure would be.

3. Who must be notified? The SDWA requires that public notice be

provided to ``the persons served by the system.'' (SDWA, Section

1414(c)(1)). Reaching the persons served may pose a challenge to some

water systems. Some consumers (such as apartment dwellers, other

renters, and condominium residents) may not be the persons paying the

water bill. Thus, the form and manner of the public notice necessary to

reach the persons served is unique to the local situation. The proposed

rule will require water systems to provide the notice in a form and

manner that is reasonably calculated to get the information to all

persons served in the required time period. The minimum methods to

satisfy this requirement are specified in the proposal for each public

notification tier. The proposed rule would also retain the requirement

that copies of the public notice be sent to the primacy agency within

10 days, in accordance with the requirements proposed in 40 CFR

141.31(d).

F. Form, Manner, and Frequency of the Tier 1 Public Notice: Violations

With Significant Potential To Have Serious Adverse Effects on Human

Health as a Result of Short-Term Exposure (Sec. 141.202)

Today's rule proposes to define the form, manner, and frequency of

a Tier 1 public notice and to require that public water systems use a

Tier 1 public notice.

1. Tier 1 Violations and Situations

The proposed rule would require a Tier 1 public notice for the

following violation categories and other situations:

Violation of the MCL for total coliform, when fecal

coliform or E. coli are present in the water distribution system; or

failure to test for fecal coliforms or E. coli after the presence of

coliform bacteria is confirmed in the water distribution system;

Violation of the MCL for nitrate, nitrite, or combined

nitrate+nitrite;

Violation of the MRDL for chlorine dioxide, where one or

more required repeat samples taken in the distribution system the

following day exceed the MRDL, or when repeat samples are not taken in

the distribution system;

Occurrence of a waterborne disease outbreak, as defined in

Sec. 141.2; and

Other violations or situations with significant potential

to cause serious adverse health effects from short-term exposure, as

determined by the primacy agency.

The violations and situations listed here as requiring a Tier 1

public notice all have significant potential to cause serious adverse

health effects from short-term exposure to the drinking water. The list

of violations requiring a Tier 1 public notice include all those

defined as posing acute health effects in the current rule. In

addition, three new violations and situations are being proposed today

for Tier 1 public notice:

First, a Tier 1 notice would be required for violations of

the new chlorine dioxide standard when the violation is based on

monitoring results in the distribution system. This was

[[Page 25974]]

added to the list of violations requiring a Tier 1 notice to be

consistent with the public notification requirements included with the

disinfection byproducts regulation published on December 16, 1998 (63

FR 69389). Violations of the chlorine dioxide standard within the

distribution system may harm human health based on short-term exposure.

Systems that do not monitor for chlorine dioxide in the distribution

system after exceeding the MRDL in entry point monitoring also must

issue a Tier 1 notice, to remain in effect until they are able to

demonstrate that chlorine dioxide is not present at these harmful

levels in the distribution system.

Second, the Tier 1 coverage for waterborne disease

outbreaks would expand the definition in the current rule beyond

violations of the SWTR for unfiltered systems. The proposed rule

broadens this definition to include waterborne disease outbreaks from

all public water systems that meet the definition in Sec. 141.2:

Waterborne disease outbreak means the significant occurrence of

acute infectious illness, epidemiologically associated with the

ingestion of water from a public water system which is deficient in

treatment, as determined by the appropriate local or State agency.

Expanding the coverage to require a Tier 1 notice from any public water

system linked to a waterborne disease outbreak meets the public health

objectives of the public notification provision. The Agency believes

that Section 1445(a) of the SDWA provides ample additional authority

for requiring public notification in such situations, even where the

situation is not explicitly listed as requiring public notification in

Section 1414(c)(1) and (2) of the SDWA. [See discussion of this in

Section IV.E.1 above.] This expansion of the Tier 1 public notification

requirements was recommended and broadly supported by the stakeholders

consulted during the development of the proposed rule.

Finally, failure to test for fecal coliform once the

presence of total coliform in the water distribution system is

confirmed would trigger a Tier 1 public notice, to remain in effect

until the system was able to demonstrate that fecal coliform or E. coli

bacteria is no longer present. The current rule does not specifically

address the public notice requirements when a PWS fails to test for

fecal coliform after confirming the presence of total coliforms. EPA

believes strongly that such violations pose great potential for short-

term adverse health risks to consumers, because a system's failure to

test for fecal coliforms in such situations may disguise a very serious

drinking water quality situation. Requiring a Tier 1 public notice in

such situations was widely supported by stakeholders consulted during

this rulemaking.

EPA considered several options that would add or subtract from the

list of violations requiring this emergency public notice. A number of

violations that may have the potential to pose health risks from short-

term exposure are not included in the proposed list. Specifically,

violations of the Total Coliform Rule (TCR) MCL (without the presence

of fecal coliform) and the Surface Water Treatment Rule (SWTR)

treatment techniques are not listed in Tier 1, although they may be

associated with potential health risks from short-term exposure. The

vast majority of the MCL and TT violations in FY 1996 were violations

of the TCR and SWTR. EPA does not believe these violations routinely

require the same urgency as those violations included in Tier 1, where

the potential for serious short-term risk to health is significant

whenever it occurs.

EPA is proposing to limit the violations routinely requiring a Tier

1 notice to those with a significant potential for serious adverse

health effects from short-term exposure. Other violations which may

have a potential for adverse health risk from short-term exposure, but

where such risk is not routinely significant, would be included in the

Tier 2 list. EPA believes focusing the proposed 24-hour notice

requirement on the more limited set of violations will increase the

effectiveness of the Tier 1 notices and lead to greater health

protection. EPA recognizes that in certain situations a TCR or SWTR

violation may create a significant and immediate health risk. In those

situations, a 24-hour notice is necessary to immediately alert

consumers to the potential risk. Because such situations are best

determined on a case-by-case basis, EPA is proposing to enable primacy

agencies to determine when special circumstances require 24-hour

notices for situations not listed in Sec. 141.202 of the rule.

2. Timing of the Tier 1 Public Notice (and Consultation Requirement)

The proposed rule will require that a Tier 1 public notice be

provided by the public water system as soon as practicable but no later

than 24 hours after the system learns of the violation. Under the

proposal, the public water system would also be required to initiate

consultation with the primacy agency within that same 24-hour period

and comply with whatever subsequent public notification requirements

are established during that consultation.

The requirement that the public water system consult with the

primacy agency within the first 24 hours of discovering the violation

is new in the proposed rule. The 1996 SDWA amendments, under

1414(c)(2)(C)(iii), require that a copy of the initial Tier 1 notice

also be sent to the primacy agency within the same 24 hour period after

the occurrence of the violation. Under 1414(c)(2)(C)(iv), the statute

requires that a public water system facing a Tier 1 notice situation

distribute a notice when required by the primacy agency after

consultation. EPA is interpreting the statutory requirements under

clause C(iii) and clause C(iv) to require that the public water system

consult with the primacy agency within the first 24 hours after the

violation becomes known to the water system to determine subsequent

public notice requirements. EPA further interprets the statute to

require the initial public notice required within the first 24 hours

under 1414(c)(2)(I) to apply regardless of when the consultation with

the primacy agency takes place. In contrast, the current rule sets the

subsequent public notice requirements (e.g., repeat notice frequencies,

form and manner of subsequent notice, etc.) in the rule itself, rather

than as a result of consultation on a case-by-case basis.

The proposed rule would identify a number of elements which may be

covered during the consultation, including the timing, form, manner,

frequency, and content of subsequent notices and other actions

reasonably calculated to ensure the notice is provided to all persons

served. Additional notices may be necessary to reach other persons

served who may not have seen the initial notice and to reaffirm the

seriousness of the public health risk from drinking the water. EPA also

believes that a supplemental notice to announce that the violation has

been resolved and the risk from the drinking water has been abated is

an effective way to bring closure to the emergency situation. When to

require subsequent notices can best be handled by the primacy agency on

a case-by-case basis in consultation with the public water system.

In summary, the timing and process established for the Tier 1

public notice in the proposed rule would be significantly different

from the current rule. First, the public water system would be required

to distribute the notice within 24 hours (as required under

1414(c)(2)(C)), rather than 72 hours. This is a statutory obligation

for such violations under the 1996 SDWA

[[Page 25975]]

amendments. Second, the proposed rule would set a new requirement that

the water system consult with the primacy agency to determine

subsequent public notification requirements. As described earlier, EPA

interprets the statute as requiring this consultation with the primacy

agency.

3. Form and Manner of the Delivery of the Tier 1 Notice

The proposed rule would allow water systems some flexibility in

choosing the form and manner used to distribute the notice, but it

reaffirms the enforceable requirement that the form and manner of

notice delivery selected by the public water system be reasonably

calculated to reach all persons served within the 24 hour period. To

satisfy this requirement, the proposed rule would require water systems

to use, as a minimum, appropriate broadcast media, posting of the

notice in conspicuous locations, and/or hand delivery to residences or

businesses served by the system. In contrast, the current rule requires

that the initial notice be by electronic media and subsequent notices

be first in the newspaper and later on by mail. The changes in the

public notification process for these emergency-type situations are

expected to ensure faster public communication that is better tailored

to the specific situation.

EPA is requesting comment on the Tier 1 public notification

requirements, in particular the list of violations requiring such a

notice, the new consultation process now proposed in lieu of more

prescriptive EPA requirements, EPA's interpretation of the statute

under 1414(c)(2)(C) which allows EPA to require public water systems to

consult with the primacy agency, and the revised requirements for the

form and manner of the Tier 1 notices.

G. Form, Manner, and Frequency of the Tier 2 Public Notice: Other

Violations With Potential to Have Serious Adverse Effects on Human

Health (Sec. 141.203)

Today's rule proposes to define the form, manner, and frequency of

a Tier 2 public notice.

1. Tier 2 Violations and Situations

The proposed rule would require a Tier 2 public notice for the

following violation categories and other situations:

All violations of the MCL, MRDL, and treatment technique

requirements not included in the Tier 1 notice category;

Violations of the monitoring and testing procedure

requirements where the primacy agency determines that a Tier 2 public

notice is required; and

Failure to comply with the terms and conditions of any

existing variance or exemption in place.

The above list is similar to the list in the comparable section of

the current rule, with two exceptions. First, the proposed rule would

set the new public notice requirements for the recently published

Disinfection Byproducts Rule and the Interim Enhanced Surface Water

Treatment Rule (63 FR 69389 and 69477). Second, the proposed rule would

allow the primacy agency, at its option, to require a Tier 2 public

notice for a specific monitoring or testing procedure violation. Unless

the primacy agency determines otherwise, monitoring and testing

procedure violations would be reported in the annual Tier 3 notice.

EPA considered two other options that would add or subtract from

the list of violations requiring a Tier 2 notice:

The first option was to move some of the MCL or treatment

technique violations into Tier 3 rather than Tier 2, with the leading

candidates for Tier 3 notice being MCL violations posing chronic health

risk and the Lead and Copper Rule (LCR) treatment technique violations.

EPA also considered separating the LCR treatment technique violations

further, putting some of the lesser violations unlikely to pose a

direct risk to public health (e.g., public education) into Tier 3.

However, this could make the requirements too complex and too difficult

to communicate simply. Simplicity in understanding and implementing the

requirements was one of the main recommendations of the GAO report. EPA

is further concerned that delaying the initial notice for MCL

violations, even if levels barely exceed the standard, beyond 30 days

(or three months at the primacy agency's discretion) may not be

consistent with the Agency's consumer right-to-know objective.

The second option was to move the notice for the

monitoring violations from Tier 3 to Tier 2, recognizing that

persistent monitoring violations could disguise potentially serious

drinking water quality violations. EPA did not select this option.

Instead, the proposal enables the primacy agency to require on a case-

by-case basis that serious monitoring and testing procedure follow the

Tier 2 public notice requirements where necessary. EPA developed an

alternative approach to the proposal that is discussed in Section VI(A)

of the Preamble. Comments are requested on both the proposal and the

option discussed in Section VI(A).

2. Timing of the Tier 2 Public Notice

The proposed rule, under Sec. 141.203(b), would require the public

water system to provide a Tier 2 public notice to persons served as

soon as practicable, but no later than 30 days after the system learns

of the violation. The public water system would be obligated to get the

notice out as soon as practicable, particularly where the situation

requires an earlier notice. The proposal also would require the public

water system to repeat the notice every three months for as long as the

violation exists. Under the proposal, the primacy agency may opt to

define specific violation circumstances that warrant an extension of

the initial Tier 2 notice or a different repeat notice frequency for

continuing violations. The proposal allows the primacy agency to define

specific circumstances where the initial notice may be extended beyond

30 days (up to three months) and where the repeat notice may be set

less frequently than every three months (but no less frequently than

once a year).

In contrast, the current rule requires a newspaper notice within 14

days, a notice mailed to all bill-payers within forty-five days, and a

repeat notice mailed every three months thereafter until the violation

is resolved. The shift from 14 days to 30 days for the initial notice,

with a possible extension for up to three months, is being proposed to

help consumers distinguish between those violations posing significant

short-term health risks requiring immediate action (Tier 1) from

violations potentially posing health risks but where no urgent action

by the consumer is necessary (Tier 2). The 30-day (or three month)

period also would give the water system more time to initiate steps to

resolve the violation before notifying the consumers.

EPA believes that giving the primacy agency flexibility to adapt

the timing requirements to fit specific circumstances is clearly

warranted. The violation situations under Tier 2 are very diverse,

ranging from violations potentially posing a health risk from short-

term exposure to violations posing a chronic risk only from long-term

exposure. One size does not fit all. An extension beyond 30 days may be

especially appropriate for contaminants posing a chronic rather than

acute health risk (e.g., fluoride, arsenic, radium). EPA standards for

such contaminants are designed to protect against long-term exposure.

An extension may also be appropriate for violations that were quickly

resolved and no longer pose any risk to persons served (e.g., some

Total Coliform Rule

[[Page 25976]]

or Surface Water Treatment Rule violations). Finally, an extension to

three months may allow the water system to include the initial notice

in the same mailing as the quarterly bill, with no loss in

effectiveness.

An alternative option to the approach proposed in today's rule

would be to require a three month deadline (rather than 30 days) for

delivery of the initial Tier 2 notice, and/or a one-year frequency for

repeat notices rather than three months. Under this alternative, the

primacy agency would retain the discretion to require the notice sooner

on a case-by-case basis or across the board for all Tier 2 violations.

EPA requests comment on this alternative approach to the proposal.

3. Form and Manner of the Delivery of the Tier 2 Notice

The proposed rule would retain the public water system obligation

to provide the Tier 2 notice to persons served by the water system.

This is a statutory obligation. The proposed rule, however, would

significantly change the specific method of delivery required to meet

this obligation. The proposed rule would first set a performance

standard: that the notice be provided in a form and manner reasonably

calculated to reach persons regularly served by the system. It would

also require a specified minimum method of delivery, but then would

provide much greater flexibility in what the water system must do to

reach other persons regularly served if they are not reached by the

minimum method. In contrast, the current rule (for community water

systems) first requires a newspaper notice, followed by a notice either

mailed or directly delivered to customers. The proposed rule would

require that community water systems:

Mail or otherwise directly deliver the notice to each

customer receiving a bill (or other service connections); and

Use any other method reasonably calculated to reach other

persons regularly served by the system if they would not normally be

reached by the mail or direct delivery requirement (e.g., newspaper,

posting in public places, delivery to community organizations, etc.).

For non-community water systems, the current rule requires posting

for as long as the violation exists. The proposed rule would require

that non-community systems:

Post or mail or directly deliver to each customer; and

Use any other method reasonably calculated to reach other

persons served by the system if they would not normally be reached by

the posting, mail, or direct delivery requirement (e.g., organization

newsletter, delivery of multiple copies to a central location, etc.).

In every case, the proposal would give the primacy agency the

option to prescribe a different method of delivery for the water

system, based on policies and procedures established as part of their

approved primacy program.

EPA believes that in practice, the proposed requirements for method

of delivery for the Tier 2 (and Tier 3) notices will ensure that

notices announcing violation of drinking water requirements are

communicated sooner and more effectively than under the current rule to

a wider range of the people served by the water system. At a minimum,

those people reached by mail or direct delivery would receive the

notice early enough to make informed choices about their drinking

water. The notice would also reach other consumers who do not pay water

bills and who are not routinely informed of the risk from the drinking

water when violations occur.

EPA discussed this provision at length with the States and at

various stakeholder meetings. A number of options emerged for delivery

of both Tier 2 and Tier 3 notices, ranging from setting a ``performance

standard'' with no minimum method prescribed to retaining the current

very prescriptive requirements. The proposal selected was to require a

minimum method to deliver the notice, but to broaden the options a

water system may select in its efforts to reach other persons served.

The option was proposed because it sets a clear and easily

understandable minimum for all water systems to follow and requires

water systems to follow a deliberate process to determine what else

needs to be done to reach other persons served. Compliance requirements

under the proposed option would be clear and enforceable.

EPA developed an alternative approach to the proposal that is

discussed in Section VI(B) of the Preamble. Comments are requested on

both the proposal and the option discussed in Section VI(B).

EPA is requesting comment on the Tier 2 public notification

requirements, in particular the list of violations included under Tier

2, the 30-day time period for the initial notice, the requirement for a

repeat notice of ongoing violations every three months, the discretion

given to the primacy agency to extend the initial notice to three

months or the repeat notice frequency to one year (either on a case-by-

case basis or by rule), and the revised requirements for the method of

delivery of the Tier 2 public notice. Comments are also requested on

the two specific options discussed in Section VI as alternatives to the

proposed language.

H. Form, Manner, and Frequency of the Tier 3 Public Notice: All Other

Violations and Situations Requiring Public Notice (Sec. 141.204)

Today's rule proposes to define the form, manner, and frequency of

a Tier 3 public notice and to require that public water systems use a

Tier 3 public notice.

1. Tier 3 Violations and Situations

The proposed rule would require a Tier 3 public notice for the

following violation categories and other situations:

Monitoring violations, unless the primacy agency

determines that the violation requires a Tier 2 or Tier 1 notice;

Failure to comply with a required testing procedure;

Operation under a variance granted under Section 1415 or

exemption granted under Section 1416 of the SDWA; and

Any other violations and situations determined by the

primacy agency to require a Tier 3 public notice.

The list of violations requiring a Tier 3 notice is similar to the

list in Sec. 141.32(b), the comparable section of the current public

notification rule. The language in the proposed rule, however, notes

explicitly that the primacy agency may require that public water

systems provide a Tier 2 (rather than a Tier 3) notice for specific

monitoring or testing procedure violations. This is discussed in

Section V(G) above and in Section VI(A).

2. Timing of the Tier 3 Public Notice

The proposed rule would require that public water systems provide a

Tier 3 public notice to persons served no later than one year after the

system learns of the violation or begins operating under a variance or

exemption. The proposal would also require the public water system to

repeat the notice annually for as long as the violation or situation

exists. In contrast, the current rule requires the notice to be mailed

within three months (with possible extension to one year at the State's

option) and a repeat notice every three months thereafter until the

violation is resolved. EPA believes that the annual notice for Tier 3-

type situations is appropriate, given the nature of the violation

(e.g., for failure to monitor) and the great number of violations

requiring such a notice (i.e., 216,522 of the 235,214 violations

reported to EPA in FY 1996).

[[Page 25977]]

3. Form and Manner of the Delivery of the Tier 3 Notice

The proposed rule would require that public water systems provide

the Tier 3 notice to all persons served by the water system. This is a

statutory obligation that applies for all notices required under the

public notification rule. The method of delivery requirements for Tier

3 public notices would be the same as those prescribed for the Tier 2

public notice. A summary of the requirements and a rationale are

included in Section V(G) above and in Section VI(B).

Water systems have the option under the proposed rule to provide an

annual notice summarizing all Tier 3 violations occurring during the

previous year in lieu of individual Tier 3 public notices. For

community water systems, the proposal would allow the Consumer

Confidence Report (CCR) to be used as the vehicle for notifying persons

served of violations occurring during the previous year. The CCR is the

appropriate vehicle for initial public notices as long as the public

notification timing and distribution requirements are met. In

particular, the CCR must be mailed or hand-delivered to persons served

and it may only include those violations occurring within 12 months of

publication. The advantages to using an annual notice instead of

individual notices for every violation are compelling, both in terms of

reduced cost and in terms of effective communication with the

consumers. Since the vast majority of violations require a Tier 3

public notice, the burden on public water systems would be dramatically

reduced through use of an annual notice. EPA strongly recommends that

public water systems make use of the annual notice option.

EPA is requesting comment on the proposed Tier 3 public notice

requirements, in particular on the option to allow public water systems

to provide an annual report of violations in lieu of individual notices

twelve months after each violation. Comments are also requested on the

use of the Consumer Confidence Report to meet the Tier 3 public

notification requirements. Finally, comments are requested on the

revised requirements for the method of delivery of the Tier 3 notices.

See Section VI(B) for a discussion of an alternative to the proposed

method of delivery for Tier 3 public notices.

I. Content of the Public Notice (Sec. 141.205)

Today's proposal specifies a list of elements that must be included

in a public notice both for water systems with violations of National

Primary Drinking Water Regulations and for water systems operating

under a variance or exemption. The proposed rule would carry forward

from the current rule the requirement that water systems use standard

health effects language for MCL, MRDL, and treatment technique

violations. The health effects language in the proposed rule would be

simplified in response to concerns raised by various stakeholders and

the GAO report that the current mandatory health language is too

lengthy and not focused on the core health effects information

consumers need to know. The proposed rule also would add new standard

language for monitoring violations. Finally, it would add new standard

language to encourage the recipients of the public notice to distribute

the public notice to others served by the water system.

Note that the States may establish alternative public notification

requirements related to the content of the public notice (as part of

their primacy program revision under 40 CFR 142.16(a)(3)), as long as

these alternative requirements provide the same type and amount of

information and are designed to achieve an equivalent level of public

notice as EPA's regulation. This would allow the States, for example,

to submit to EPA for approval a primacy program revision that includes

alternatives to the required language on health effects, monitoring

violations, or distribution of the notice to others.

1. Standard Elements of the Public Notice (Sec. 141.205(a)-(c))

The proposed rule would revise and edit the list of standard

elements required in public notices.

Ten elements would be required (under Sec. 141.205(a)) for

public notices for violations of the NPDWR: a description of the

violation that occurred (including the contaminant level); when the

violation occurred; any potential adverse health effects; the

population at risk; whether alternative water supplies should be used;

what actions consumers should take; what the system is doing to correct

the violation; when the water system expects to return to compliance;

the phone number of the water system owner or operator; and a statement

appended to the notice to encourage notice recipients to distribute the

notice to other consumers who might not have received their own copy of

the notice.

Four elements would be required (under Sec. 141.205(b))

for public notices for water systems operating under a variance or

exemption: an explanation for the reasons for the variance or

exemption; the date the primacy agency granted the variance or

exemption; a brief status report on compliance with the variance or

exemption conditions; and a notice of any opportunity for public input

into the review of the variance or exemption. Note that this

information is identical to that already required to be included in the

CCR. Community water systems that use the CCR as the vehicle for the

initial public notices would not need to add any additional information

to meet the content requirements for the variance and exemption notices

required under this proposal.

Four performance standards will be listed (under

Sec. 141.205(c)) defining the adequacy of the notice: the notice must

be displayed in a conspicuous way (where applicable); must not contain

overly technical language or very small print; must not be formatted in

a way that defeats the purpose of the notice; and must not contain

language that nullifies the purpose of the notice.

For public water systems serving a large proportion of

non-English speaking consumers (as determined by the primacy agency),

the public notice would be required to contain information in the

appropriate language regarding the importance of the notice or contain

a telephone number or address where persons served may contact the

water system to obtain a translated copy of the notice or to request

assistance in the appropriate language.

The proposed rule (under Sec. 141.205(a)) would edit and rearrange

the list of required elements from the current rule. The most

significant change to Sec. 141.205(a) is to require that the notice for

MCL and MRDL violations include the contaminant level. The proposed

rule also would add a new section Sec. 141.205(b) setting the required

elements for a variance or exemption notice. This would be added to

cover the specific notice requirements unique to water systems

operating under a variance or exemption.

The proposed rule would modify the current rule by requiring public

water systems serving a large non-English speaking population (as

determined by the primacy agency) to either include information

regarding the importance of the notice in the appropriate language, or

provide a water system contact to assist the non-English speaking

consumers. The current rule under Sec. 141.32 (d) sets a similar

requirement, but in much more general terms, requiring simply that the

notice shall be multi-lingual where appropriate. The proposed public

notification requirement is identical to the provision contained in the

Consumer Confidence

[[Page 25978]]

Report (CCR) regulation, 40 CFR Part 141, Subpart O [63 FR 44511

(August 19, 1998)]. Under the proposed rule, public water systems

serving a large non-English speaking population would be required at a

minimum to take concrete steps to communicate the importance of the

notice in the appropriate language so that non-English speakers could

get assistance in understanding it. EPA encourages water systems to go

beyond this minimum and provide a translated copy of the notice on

request or offer telephone assistance in the appropriate language. The

draft Public Notification Handbook issued with the proposed rule for

comment contains sample language regarding the importance of the notice

in various languages as well as complete sample Tier 1 public notices

in Spanish.

EPA modified the list of elements to be required in the public

notice in response to stakeholder requests to provide clearer national

minimum standards for notice content and consistency. Comments are

requested on the list of elements in the proposal, the four performance

standards identified for how the notices must be presented, and the

more specific requirement for public water systems to communicate with

large non-English speaking populations about the importance of the

public notice when violations occur.

2. Standard Health Effects Language (Sec. 141.205(d)(1))

The proposed rule would retain the requirement that all public

notices for MCL and treatment technique violations use mandatory health

effects language to explain the health risks posed by the violation.

The language being proposed today in Subpart Q, Appendix B is identical

to the language promulgated in the Consumer Confidence Report (CCR)

regulation, 40 CFR Part 141, Subpart O, Appendix C. The proposal would

replace language in the current rule that was added when each NPDWR was

promulgated. The proposed language is shorter, simpler, and consistent

with the language EPA uses in similar outreach forums and documents.

EPA is proposing to use the language for the public notification

rule that is identical to health effects language from the CCR

regulation because it does not make sense to draft different language

to meet such a similar requirement, unless there is a compelling reason

that is specific to the intent of the public notification provision.

Although EPA recognizes that the CCR and public notice may be given at

different times and may be intended to meet different objectives, EPA

believes that the benefits of having identical language to communicate

the same health effects from violations outweighs the value of

tailoring the language to the unique objectives of the public notice.

EPA expects that public water systems will supplement the mandatory

health effects language or otherwise put the language in the context of

the overall notice to meet the unique purposes of the specific public

notice. Examples of public notices applicable to different situations

are included in the draft Public Notification Handbook which is being

issued concurrently with this proposed rule for comment.

EPA is requesting comment on the proposal to use the CCR standard

health effects language to meet the public notification requirement. In

particular, EPA is soliciting comment on specific situations or

violations where the CCR language is believed to be inappropriate or

incomplete. Recommendations for alternative language for such

situations would also be helpful.

3. Standard Language for Monitoring and Testing Procedure Violations

(Sec. 141.205(d)(2))

The proposed rule would add a new section requiring that all public

notices contain standard language for monitoring and testing procedure

violations. The proposed standard language informs consumers that

because the water system did not monitor or follow the required testing

procedure during the compliance period, the presence or absence of the

contaminant during that time could not be determined and the water

system is unable to tell whether there was a risk to health during that

time. This new mandatory language is being proposed because of

stakeholder concerns that consumers may presume that because there is

no reported MCL, MRDL, or treatment technique violation that the

drinking water provided by their water system is safe. This may not

always be an appropriate presumption. The mandatory language as

proposed is intended to be included in all public notices for

monitoring and testing procedure violations.

The proposed standard language was developed after the EPA

workgroup (in consultation with a number of States) considered

alternative approaches. EPA is soliciting comment on the proposed

standard language and welcomes recommendations on alternative language

that would effectively inform consumers of the significance of the

monitoring violation. In particular, EPA will consider alternatives to

the phrase ``* * * and we are unable to tell whether your health was at

risk during that time.'' The phrase is included in the proposal to

clearly and simply alert consumers that lack of monitoring may disguise

a potential risk to health. It is intended to raise questions about the

significance of the specific monitoring violation, not to alarm

consumers unnecessarily. EPA recognizes that many monitoring violations

pose no risk to health and that most water systems resume monitoring

quickly after a single violation. The proposed standard language will

be most effective where the water system supplements the standard

language with a clear explanation of what the violation meant and how

it was rectified. EPA will consider options to this standard language

in its final rule.

Another option would be not to require that any specific language

be included for all monitoring violations, but to set a performance

standard instead. The performance standard might be that all monitoring

violations be explained in a way that appropriately communicates the

public health significance of the violation. EPA also requests comment

on this alternative approach.

4. Standard Language to Encourage Customers Receiving the Public Notice

To Distribute the Notice to Other Persons Served (Sec. 141.205(d)(3))

The proposed rule would add a new section requiring that public

notices contain standard language encouraging the customers receiving

the public notice to distribute the notice to other persons served by

the water system (such as tenants, residents, patients, etc.). Mailed

notices, in particular, are routinely sent to only the bill-paying

customers, and therefore may not reach some consumers at risk unless

actions are taken to notify them of the violations. EPA believes that

this standard language is appropriate as a safety net and necessary to

encourage those receiving the public notice to take steps to alert

others of the violations and potential risk from drinking water.

Compliance with this requirement is one of the ``reasonably-calculated

steps'' a public water system must take to reach other persons not

expected to receive the initial notice. EPA requests comment on the

proposed standard language and would welcome alternative language that

aids the water system in reaching all persons served.

J. Other Public Notification Requirements

1. Notice to New Billing Units or New Customers (Sec. 141.206)

EPA is proposing to modify the current regulatory provision

requiring

[[Page 25979]]

that community water systems send a copy of the most recent public

notice to all new billing units for ongoing MCL and TT violations or

existing variances and exemptions. The proposed rule would broaden the

requirement to include notice for on-going monitoring and testing

procedure violations and adds a new provision requiring non-community

water systems to continuously post the notice or otherwise take steps

to inform new customers of any ongoing violations. EPA is proposing

this change to the existing requirement to better ensure that new

customers served by all public water systems are made aware of any

continuing violations of drinking water standards. The initial notice,

if posted in a location where new consumers pass by, will meet this new

requirement. However, water systems that deliver the initial notice by

hand delivery or otherwise have the notice out of sight of new

consumers would have an additional responsibility under this new

provision. EPA believes this new provision will make notices more

readily available to new consumers not receiving the notice under the

current regulation. EPA requests comment on the change to the current

regulation extending the requirement to cover on-going monitoring and

testing procedure violations and to require that the notice be provided

to new customers by both community and non-community water systems.

2. Special Notice To Announce the Availability of the Results of

Unregulated Contaminant Monitoring (Secs. 141.207 and 141.35)

Section 1414(c)(2)(E) of the SDWA, as amended in 1996 gives EPA the

authority, at its option, to require public water systems to give

notice to persons served of the concentration levels of unregulated

contaminants, where such monitoring is required by EPA. The authority

for EPA to require such notice was part of the SDWA prior to the 1996

amendments. However, the 1996 SDWA amendments, under Section

1445(a)(2)(E), now require public water systems to give notice of the

results of the unregulated contaminant monitoring required by EPA to

persons served by the system. EPA believes that the intent of these

statutory provisions is met by the existing public notification

provision under Sec. 141.35, as amended under this proposal. Section

141.35 requires water systems to announce the availability of the

results of required unregulated contaminant monitoring through the

public notice process. Further, the CCR regulation requires the results

of such monitoring to be included in the annual CCR. Together, the two

existing requirements meet the public-right-to-know objective and are

protective of public health.

EPA is proposing to amend the current provision under Sec. 141.35

and move the amended provision to the new Subpart Q. The current

provision requires that the water systems give notice of the

availability of unregulated contaminant monitoring results within three

months of receiving the results. The amended requirement under

Sec. 141.207 retains the same reporting requirement but changes the

timing from three months to twelve months after the results are known.

The proposed change in the timing of the public notice is to allow

water systems, at their option, to report the availability of all the

results just once during the year, reducing the number of notices from

four to one. For community water systems, the annual reporting

requirement can also be met through the CCR, which already must include

the actual results of the unregulated contaminant monitoring. EPA

believes close coordination between the public notification requirement

and the CCR reporting requirement for this information will be both

more efficient and less confusing to the regulated community and the

public.

EPA requests comment on the proposed approach to meet the

requirements under Sections 1414(c)(2)(E) and 1445(a)(2)(E). EPA also

requests comment on its proposal to shift the reporting frequency

announcing the results of unregulated contaminant monitoring from three

months to twelve months.

3. Special Notice for Exceedance of the Fluoride Secondary Maximum

Contaminant Level (SMCL) (Sec. 141.208)

EPA is proposing to modify the standard language and to make other

minor changes to the existing special notice currently required under

Sec. 143.5 for community water systems that exceed the SMCL for

fluoride. The proposal would move the revised special fluoride notice

requirement into the new Subpart Q public notification provision. The

special public notice for exceedances of the SMCL is to alert persons

served that the fluoride levels in the drinking water may pose a

cosmetic dental risk to children under nine years old. The SMCL is 2

mg/l. The annual public notice would continue to be required whenever

drinking water monitoring shows fluoride levels above 2 mg/l but below

the MCL violation level of 4 mg/liter. The public notice requirements

for violations of the fluoride MCL would be addressed separately from

the special fluoride SMCL public notice required under Sec. 141.208.

The proposed regulation under Sec. 141.208 will make two changes to

the current public notice requirements for exceedance of the fluoride

SMCL:

To require that the form and manner of the special notice

follow the Tier 3 requirements in Secs. 141.204(c) and 141.204(d) of

the proposed rule; and

To revise and simplify the mandatory language, consistent

with the format used to develop the revised standard health effects

language for MCL, MRDL, and TT violations.

The proposed requirement that the notice be provided within 12

months from the day the water system learns of the exceedance, is

unchanged from the existing requirement.

EPA believes it is important to retain the existing fluoride SMCL

notice requirement with only minor conforming changes. Consumers have a

right to know about the cosmetic effects from dental fluorosis that may

occur in children from prolonged exposure to drinking water exceeding

the fluoride SMCL. The notice requirement for exceedance of the

fluoride SMCL at 40 CFR 143.5 was put in place when the fluoride

national primary drinking water regulation (NPDWR) was published in

April 2, 1986 [50 FR 11396]. The fluoride NPDWR replaced the more

stringent MCL in place as an interim standard since the original SDWA

in 1974. The interim MCL of 2 mg/l became the SMCL when the final

primary standard was published on April 2, 1986. Part of the

justification for reducing the stringency of the MCL from 2 mg/l to 4

mg/l was that the public would be notified of the potential for

developing dental fluorosis from exposure to their drinking water when

the levels exceeded

2 mg/l.

EPA considered a number of options changing the current fluoride

SMCL notice requirements, ranging from eliminating the notice

altogether to requiring the notice every three months rather than 12.

EPA also discussed extending the SMCL notice requirement to NTNCWS, as

the risk to children from drinking water exceeding the SMCL from

schools and day-care centers (e.g., NTNCWS) may be as great as drinking

such water from their primary residences (e.g., CWS). Although NTNCWS

are not currently required to monitor for fluoride under EPA's current

regulations, and therefore the EPA SMCL notice requirement does not

apply, EPA recommends that both CWS and NTNCWS known to be providing

drinking water with fluoride levels

[[Page 25980]]

exceeding 2 mg/l provide the special SMCL notice to persons served.

After reviewing the various options, EPA sees no reason to re-open the

decision made at that time to require the notice only when CWSs exceed

the SMCL of 2 mg/l.

EPA requests comment on whether EPA should retain the special

public notice for exceedance of the fluoride SMCL and, if retained,

whether retaining the requirement allowing the public notice to be

given 12 months after the exceedance is known is sufficient. EPA also

requests comment on whether the revised mandatory language better

communicates the purpose of the notice and the cosmetic risks from

drinking the water.

4. Conditions Under Which the Primacy Agency May Give Notice on Behalf

of Public Water System (Sec. 141.209)

EPA is proposing to retain the provision in the current rule

specifying under what conditions the primacy agency may give notice on

behalf of a public water system. Under this provision, the primacy

agency may give a public notice for the public water system if all

public notification requirements are met. The responsibility to comply,

however, would always remain with the public water system. EPA requests

comment on the proposal to retain this provision.

K. Reporting to the Primacy Agency and Retention of Records

(Secs. 141.31 and 141.33)

Under the current Sec. 141.31, public water systems are required to

submit copies of all public notices to the primacy agency within 10

days of completing each public notice. EPA is proposing to amend the

existing reporting requirement under Sec. 141.31 by also requiring

public water systems to submit a certification to the primacy agency

that all public notification requirements have been met. EPA considered

a number of options to the proposal to require that public water

systems certify after each violation that all public notification

requirements were met:

One option was to broaden the proposed certification

provision to require a public water system to not only certify that it

met the public notice requirements but also to explain how the

requirements were met. EPA decided not to propose this broader

requirement because such additional reporting is resource intensive and

unnecessary in most cases. The requirement for water systems to send

copies of all notices with a simple certification of compliance

provides sufficient information for primacy agencies to identify non-

compliers.

A second option was to leave the existing reporting

provision unchanged, with no certification required. EPA believes that

a self certification of compliance to the primacy agency (with copies

of the notices) saves primacy agency resources and allows better

targeting of non-compliers.

A third option was to shift the 10-day requirement to

submit the certification and copies of notices to the primacy agency to

30 days, three months, or even a year after the public notice. EPA is

proposing to maintain the existing 10-day requirement to give primacy

agencies enough information to immediately target non-complying water

systems. The potential for such immediate feedback where a

certification is not received will increase voluntary compliance.

The proposal would also amend Sec. 141.33 to require that public

water systems retain public notification records for three years. The

current regulation has no provision for retention of public

notification records. A record retention requirement for public notices

conforms with the requirements already in place for other EPA

regulatory requirements (e.g., sampling results, CCRs, variances and

exemptions). The record retention period of no more than three years is

consistent with the limits set in the Office of Management and Budget

regulations at 5 CFR 1320.5 implementing the Paperwork Reduction Act.

Regulations at 5 CFR 1320.5, governing the imposition of reporting

and record keeping requirements by Federal agencies on the public,

specify that those reporting information should not be required to

retain records (other than health, medical, government contract, grant-

in-aid, or tax records) for more than three years, unless the agency

demonstrates that a longer retention period is necessary to satisfy

statutory requirements or other substantial need. These regulations

were published by the Office of Management and Budget to implement the

Paperwork Reduction Act goal of minimizing the paperwork burden for

individuals, small businesses, education, and non-profit institutions,

Federal contractors, state, local, and tribal governments, and other

persons resulting from the allocation of information by or for the

Federal government. In accordance with these regulations, EPA is

proposing a 3-year record retention requirement for public notification

records.

EPA is also asking for comment on an alternative to the proposal

that would extend the record retention period from three years to five

years for public notification records. EPA believes that the public

notification regulation is important to public health because of the

important health information provided to the public upon finding a

violation. Because of the public health protection provided by this

regulation, all enforcement options should be maintained by the Agency

and citizens using the citizen provisions of the SDWA. Record retention

will ensure speedy and less costly enforcement. This alternative to the

proposal would ensure that records are available to EPA and citizens to

support penalty enforcement actions for the full five year federal

statute of limitations. A five-year retention period for public

notification records would also be consistent with the retention period

for the related CCR regulation.

EPA requests comment on the reporting and record-keeping proposal,

including the alternative to the proposal to set the retention period

for records under the public notification regulations to five years.

EPA also requests comment on whether the record retention periods

required under the related CCR regulation should be adjusted to three

years, if necessary to be consistent with the final public notification

retention requirement and Paperwork Reduction Act regulations.

L. Special State/Tribal Primacy Requirements and Rationale (40 CFR Part

142, Subpart B)

The rule being proposed today would amend Secs. 142.16 and 142.10

of the primacy regulations (40 CFR Part 142, Subpart B) to define the

requirements that States (including eligible Indian Tribes) must follow

to incorporate the revised public notification regulations into their

approved primacy program. The proposed rule also revises Sec. 142.14 to

require that the State retain, for three years, the certifications and

public notices received from the public water systems and any

determinations establishing alternative public notification

requirements. Finally, the proposal revises Sec. 142.15 to reaffirm the

requirement that the State report violations of the public notification

regulations on a quarterly basis to EPA.

The proposed changes to the primacy requirements for the revised

public notification rule would amend both Secs. 142.10 and 142.16(a).

Under the primacy regulations, a State is required to adopt, as a

condition of primacy, a State rule that is no less stringent than the

regulation being proposed today. The requirements States must meet to

receive primary enforcement responsibility (``primacy'') are listed in

[[Page 25981]]

Sec. 142.10 and requirements to revise an approved primacy program are

in Sec. 142.12. Under Sec. 142.10(b)(6)(v), each State with primary

enforcement responsibility must adopt and implement adequate procedures

to require public water systems to give public notice that is no less

stringent than the EPA public notification requirements. Special

primacy requirements unique to specific regulations are in Sec. 142.16.

The special primacy requirements for the public notification regulation

are in Sec. 142.16(a).

EPA is proposing to amend Sec. 142.10(b)(6)(v) to replace the

existing citation with the new public notification citation (40 CFR

Part 141, Subpart Q). The proposed change to Sec. 142.16(a) would

delete the existing language and replace it with a new section

comprised of three elements.

First, Sec. 142.16(a)(1) would require primacy States to submit

requests for approval of a revised primacy program adopting the new

public notification requirements under 40 CFR Part 141, Subpart Q.

States will have two years after the final rule is published in the

Federal Register to submit a complete and final primacy program

revision package to EPA, unless the State requests and EPA approves an

extension of up to two additional years.

Second, Sec. 142.16(a)(2) would require that States establish, as

part of their revised primacy program, enforceable requirements and

procedures when the State opts to use the authority under:

Sec. 141.201(a)--To require public water systems to give a

public notice for situations other than those listed in Appendix A,

where the State determines that the situation has significant potential

for serious adverse effects on human health;

Sec. 141.202(a)--To require public water systems to give a

Tier 1 public notice (rather than a Tier 2 or Tier 3 notice) for

violations or situations other than those listed in Appendix A;

Sec. 141.202(b)(3)--To require public water systems to

comply with additional Tier 1 public notification requirements set by

the State subsequent to the initial 24-hour notice, as a result of

their consultation with the State required under Sec. 141.202(b)(2);

Sec. 141.203(a)--To require the public water systems to

provide a Tier 2 public notice (rather than Tier 3) for monitoring or

testing procedure violations specified by the State;

Sec. 141.203(b)--To grant public water systems an

extension of time (up to three months) for distributing the Tier 2

public notice, for specific circumstances defined in the State's

primacy program;

Sec. 141.203(b)--To require a different repeat notice

frequency for the Tier 2 public notice (to be no less frequent than

once per year), for specific circumstances defined in the State's

primacy program; and

Secs. 141.203(c) and 141.204(c)--To require a different

form and manner of delivery for Tier 2 and 3 public notices.

Third, Sec. 142.16(a)(3) would allow the State to establish, by

rule, alternative public notification requirements from those

established in the rule being proposed today. Section 142.16(a)(3)

incorporates language in Sec. 1414(c)(2)(B) of the SDWA, as amended in

1996, defining the alternative program. Under this section, a State may

develop an alternative program with respect to the form and content of

the notice, as long as the program contains the same amount and type of

information. EPA is proposing to interpret the ``no less stringent''

standard of EPA's primacy regulations as requiring States to maintain

the same type and amount of information as EPA's rule. The State

alternative public notification program would have to be approved by

EPA as part of the process established under the primacy rule to review

revisions to approved primacy programs.

EPA is requesting comment on the proposed requirements States would

have to follow to develop the approved primacy program revision and on

other changes to the State record keeping and reporting requirements

related to the public notification rule. EPA is also requesting comment

on the proposed interpretation of the primacy standard to be applied

for review of State alternative programs.

V. Relationship of Public Notification Regulation to Consumer

Confidence Report (CCR) Regulation

The rule being proposed today would be closely related to the

Consumer Confidence Report (CCR) regulation promulgated in August, 1998

[63 FR 44511 (August 19, 1998)]. In developing the proposal for the

public notification rule, EPA identified provisions of both rules that

either overlap or need to be consistent. The proposed rule has used

identical language from the CCR rule where there was an overlap,

deferred to the CCR process where the public notification objectives

could be effectively accomplished through the CCR, and otherwise used

language consistent with the CCR when it was appropriate.

Health Effects Language (Sec. 141.205(d)(1), Appendix B).

Language on health effects of violations is required both for the CCR

and public notification. EPA is proposing that the health effects

language for the public notice would be identical to the language in

the CCR (Sec. 141.153(d)(6), Appendix C).

Use of CCR for Some Public Notices (Sec. 141.204(d)). The

annual CCR requires an annual summary of all violations that have

occurred in the last year (Sec. 141.153(f)). EPA is proposing today

that community water systems, at their option, use the Consumer

Confidence Report as the mechanism to notify their customers of any or

all Tier 3 violations as long as those violations occurred within the

last 12 months (see discussion in part IV(H) above). EPA is also

proposing that public water systems not required to distribute a CCR

consider an annual report of all their Tier 3 violations or variance or

exemptions, in lieu of individual public notices. In all cases, the CCR

or other annual report would have to follow the requirements of the

public notice rule to be used for this purpose.

State Primacy Requirements (Sec. 142.216(a)). Both the CCR

and the public notice regulations must be adopted by the State as a

condition of primacy. EPA is proposing today that the standards and

process for primacy approval for the public notification rule would

follow the same requirements contained in the CCR rule

(Sec. 142.16(f)).

Notice of the Availability of the Results of Unregulated

Contaminant Monitoring Sec. 141.207). The 1996 SDWA amendments for both

the CCR and public notification contained provisions related to giving

notice of the results of unregulated contaminant monitoring required by

EPA. The CCR provision makes such reporting mandatory (Sec. 141.153(d)

and (e)). The public notice provision (Sec. 1414(c)(2)(E)) requires

such reporting at the option of the EPA Administrator. EPA is proposing

today to defer to the requirement that such information be included in

the annual CCR for community water systems. EPA is also proposing today

to continue (with some revisions) to require that community water

systems give notice of the availability of the results of the

unregulated contaminant monitoring now required under Sec. 141.35.

Certification by PWS That Public Notification Requirements

Are Met (Sec. 141.31(d)). The proposed rule would add a new requirement

that public water systems submit a letter to the primacy agency

certifying that all requirements have been met. This would be

consistent with the certification requirement in the CCR regulation

(Sec. 141.155(c)).

Use of Multilingual Notices (Sec. 141.205(c)(2)). The CCR

regulation requires that in communities with a

[[Page 25982]]

large population of non-English speaking residents, as determined by

the primacy agency, the report must contain information in the

appropriate language(s) regarding the importance of the notice or

contain a telephone number or address where persons served may contact

the water system to obtain a translated copy of the notice or to

request assistance in the appropriate language. The proposed public

notification would be identical to the provision in the CCR rule

(Sec. 141.153(h)(3)).

EPA is requesting comment on the approach in the proposed rule to

align the public notification requirements with the parallel

requirements in the CCR rule for the six areas identified above and for

any other areas that would make compliance with the two rules more

effective and efficient.

VI. Request for Public Comment on Alternatives to Proposal

EPA has requested comment throughout this preamble on the various

elements of the regulation proposed today. EPA is requesting here

comments on two specific options that are alternative approaches to

what is being proposed. EPA will consider comment on these two

alternative options to determine the final rule requirements.

A. Requiring Tier 2 Public Notice for Monitoring and Testing Procedure

Violations

During the development of the proposed public notice requirements

for specific violations, several options emerged for the proper

placement of monitoring and testing procedure violations. Over 90

percent of all violations of National Primary Drinking Water

Regulations are monitoring and testing procedure violations. These

violations range in severity from an administrative error quickly

corrected to failure to monitor over the whole year. EPA is proposing

that the public notice for all monitoring and testing procedure

violations follow the Tier 3 annual notice requirements, unless the

primacy agency determines on a case-by-case basis that the more

stringent Tier 2 notice is necessary. EPA believes that Tier 3 notices

are appropriate for the vast majority of monitoring violations because

they are unlikely to result in significant health threats. Recognizing,

however, that in some cases they may disguise such a threat, EPA is

providing flexibility to the primacy agency to place monitoring

violations in Tier 2 (or even in Tier 1) on a case-by-case basis. EPA

is concerned that requiring more frequent notices for monitoring and

testing procedure violations on a routine basis may dilute the

effectiveness of the public notification process.

Some stakeholders have expressed concern that this proposal was not

sufficiently protective of public health and the consumer's right-to-

know. They argue that placing all monitoring and testing procedure

violations in Tier 3, even though the primacy agency has the option to

place them in a higher tier when warranted, may in some cases increase

the possibility that timely public notices for serious violations would

not be made. In cases where inadequate monitoring disguises MCL or TT

violations, the lack of timely notice may pose a risk to public health.

EPA is, therefore, requesting comment on an alternative to the

proposal that would require public water systems to use Tier 2 (rather

than Tier 3) public notice for monitoring and testing procedure

violations. Under this alternative proposal, primacy agencies would be

allowed, by rule, to designate some or all monitoring and testing

procedure violations as Tier 3 rather than Tier 2. The presumption

under this alternative is that the violation would require a Tier 2

notice unless the primacy agency decided otherwise (as part of its

approved primacy program). Another option would be to allow the primacy

agency to classify monitoring and testing procedure violations as Tier

3 on a case-by-case basis. Both the proposed language and these

alternatives give the primacy agency flexibility to tailor the public

notice to the seriousness of the violation. The difference lies in what

the default would be in the absence of action by the primacy agency.

Because EPA believes that Tier 3 is appropriate for the vast majority

of monitoring and testing procedure violations, the proposed rule makes

Tier 3 the default.

Comments are requested on these alternative proposals for

determining the proper public notice tier for monitoring and testing

procedure violations.

B. Giving PWS Flexibility in Method of Delivery of Tier 2 and 3 Notices

The proposed rule would require that community water systems mail

or directly deliver notices to bill-paying customers (or service

connections) and use any other method reasonably calculated to reach

other persons if they would not normally be reached by the mail or

direct delivery requirement. The proposed rule has a parallel provision

for non-community water systems, allowing posting in lieu of mail or

hand delivery.

EPA discussed this provision at length with the various stakeholder

groups. EPA is asking for comment on an alternative to the proposed

language that would allow the public water system to choose from a

longer list of possible delivery methods. Unlike the proposal, the

alternative would not require a specific method to be used by all the

water systems (e.g., mail or direct delivery by all community water

systems). In both the proposed language and this alternative, the water

system's obligation under the rule would be the same: to take steps

reasonably calculated to reach all persons served.

The advantage of this alternative is that it gives the water system

a menu of methods to choose from to reach all persons served, which

encourages creative and more efficient solutions than possible under

the proposal. It recognizes the need to tailor the methods of delivery

used to the specific situation. The disadvantage is that it sets a less

precise regulatory obligation that may lead to inadequate compliance

with the intent of the public notice provision. It may also be more

difficult for EPA and the States to enforce this less precise

requirement.

EPA is requesting comment on this alternative to the language in

the proposal for delivering Tier 2 and Tier 3 notices. If the

alternative is chosen in the final rule, what optional methods should

EPA include in the regulatory list of acceptable delivery methods?

VII. Cost of Rule

EPA has estimated the costs for both public water systems, which

must comply with the requirements of the proposed public notification

rule, and the State primacy agencies, which must implement the new

requirements on behalf of EPA.

For public water systems, the estimated costs of complying with the

new regulation are divided into three component activities: notice

preparation costs, notice distribution costs, and costs of repeat

notices. Only public water systems with a violation or other situation

requiring a public notice incur costs under this rule. Notice

preparation costs include those costs that a public water system must

incur to comply with the requirements regardless of how many copies of

the notice it must deliver. These costs include the labor hour costs

associated with becoming familiar with the requirements for the notice,

collecting data regarding monitoring results and the violation,

consulting with the primacy agency (when necessary), preparing the

technical content of the public notification in a format suitable for

distribution, identifying the recipients of the notice, and providing

instructions

[[Page 25983]]

about production of the notice. Notice distribution costs are costs

that increase or decrease along with the number of public notices to be

delivered. These costs include costs of producing the reports (costs of

paper, photocopying or printing, and labels), postage costs when the

notice is mailed, costs of a notice in a newspaper when necessary,

costs of posting notices in specified locations, and other labor hour

costs of producing and delivering the notices. Repeat notice costs

involve only the costs of delivering a second copy of the notice, if

the violation is not corrected within the specified time period.

For primacy agencies, the estimated incremental costs of

implementing the new requirements are also divided into three

components: costs of consulting with public water systems to clarify

notice requirements on a case-by-case basis; costs of receiving and

reviewing the public water system compliance certification and copies

of the notices; and costs of filing and maintaining the public

notification records.

Table C provides a summary of the estimated total dollar and hour

costs to public water systems and to the State primacy agencies. The

public water system costs are broken out by size of the system. The

combined total cost per year to both the PWS and the primacy agencies

is $17,956,117. The combined total burden hours are 972,107.

Table C.--Average Annual Cost and Labor Hours for Public Water Systems and Primacy Agencies

----------------------------------------------------------------------------------------------------------------

Number of Labor hours Cost per

Summary table Total cost Total labor systems in per system system (1)/

per year hours violation (2)/(3) (3)

(1) (2) (3) (4) (5)

----------------------------------------------------------------------------------------------------------------

Public Water Systems (PWS):

PWS serving 25-500........................ $6,867,175 686,718 40,467 16.97 $169.70

PWS serving 501-3,300..................... 1,804,545 146,732 4,473 32.80 403.43

PWS serving 3,301-10,000.................. 1,266,782 36,718 912 40.26 1,389.02

PWS serv. 10,001-100,000.................. 2,614,813 36,186 667 54.25 3,920.26

PWS serving over 100,000.................. 3,837,948 4,634 53 87.42 72,414.11

-----------------------------------------------------------------

Totals for PWS:......................... 16,391,263 910,987 46,572 19.56 351.96

=================================================================

State Primacy Agencies........................ 1,564,854 61,120 56 primacy 1,091.0 $27,944.00

agencies. hours per per primacy

primacy agency.

agency.

-----------------------------------------------------------------

Totals.................................. 17,956,117 972,107

----------------------------------------------------------------------------------------------------------------

\1\ Costs include both labor hour costs and O&M costs.

\2\ Table C-4, PWS (and Pop.) in Violation by System Size, National Public Water System Supervision Program,

Draft Compliance Report, FY 1996, data for FY 1996.

The Agency estimates that the annual cost to all public water

systems with one or more violations during the year is $16,391,263,

including the costs for 910,987 labor hours and the costs for postage

and other related O&M costs. This is an average annual cost of $351.96

for the 46,572 public water systems required to comply with the public

notice requirements because they had one or more violations during the

year. As shown in Table C, per system costs and labor hours vary most

significantly by size of the water system:

The dollar costs include both labor hour costs and non-

labor costs. The non-labor costs incurred are principally to cover

costs of the postage to mail the notice. Because the cost of

distribution varies directly with the number of persons served, the

cost per water system for the large and very large water systems is

many times higher than the cost per water system for small and very

small systems (e.g., $169.70 per system serving less than 500 people

vs. $72,414.11 per system serving over 100,000).

The labor hours vary by both the type and size of the

water system. For example, a non-community water system may post the

notice, a significantly lower labor hour burden than preparing a

mailing or hand delivering the notice. System size also makes a

significant difference in total labor costs. The labor estimated to

prepare and distribute the notice for a very small system is 14.7

hours. For very large systems, the labor hour estimate is 90.8 hours,

more than six times the rate estimated for the very small systems.

The Agency estimates the annual primacy agency costs and labor

hours to be $1,564,854, and 61,120 hours. The average annual cost per

primacy agency is estimated at $27,944 per primacy agency ($1,564,854

divided by 56) and the annual labor hours per primacy agency are

estimated at 1,091 hours per primacy agency (61,120 divided by 56).

This does not include the costs to EPA of implementing this regulation

where EPA directly implements the regulatory program on Indian lands.

The paperwork burden associated with the existing public

notification requirements in 40 CFR Part 141.32 is currently included

in the baseline drinking water ICR (OMB Control No. 2040-0090, EPA ICR

#270.39). The estimated burden under ICR #270.39 is 955,191 hours, and

the costs are $21,969,393. This is the estimated cost to public water

systems only, as the approved ICR did not include any incremental costs

to the primacy agencies.

To estimate the change in the burden under the proposed rule to

public water systems, EPA re-calculated the burden numbers under the

current rule to provide a common basis for comparing the existing rule

with the proposed rule. The existing ICR estimate could not be used as

the basis of comparison because it used different lower external cost

and workload assumptions. First, the cost assumptions in the current

ICR used different postage and labor rates. Second, the current ICR

assumes different violation levels than the proposed ICR. Third, some

activities, such as repeat notices, were omitted from the current

estimate.

The combined changes in burden and cost to both primacy agencies

and PWSs, based on comparing the proposed rule estimate to the adjusted

current rule estimate, are shown in the table below:

[[Page 25984]]

Burden and Cost Estimates Under the Current and Proposed Rules (for PWSs and Primacy Agencies)

[Rounded to Nearest 10,000 for Burden Hours and Nearest $100,000 for Cost]

----------------------------------------------------------------------------------------------------------------

Current rule

(Re- Proposed rule Decrease Percent change

calculated) ICR

--------------------------------------------------------\1\-----------------------------------------------------

Burden.......................................... 1,200,000 970,000 230,000 19.2

Cost............................................ $27,000,000 $17,900,000 $9,100,000 33.7

----------------------------------------------------------------------------------------------------------------

\1\ To make the current rule estimate and proposed rule estimate comparable, the current rule estimate is

adjusted to be the sum of the costs under the proposed rule plus the estimated cost savings that will be

realized under the proposed rule.

Two programmatic changes associated with the proposed rule account

for the bulk of the reduction in burden and cost estimates from the

current rule.

The proposed rule changes both the timing and method of

delivery options for Tier 3 violations--

--The proposed rule would require notice within one year after the

occurrence of the violation rather than within three months, as

required by the current rule. Systems with monitoring and testing

procedure violations occurring several times throughout the year are

able under the proposed rule to consolidate their notices into one

annual notice. The current rule limits the PWS's ability to combine

multiple violations into a single notice to those occurring within the

prior three months. For estimating the burden reduction from this

change, EPA assumes that, under the current rule, systems with

violations send out an average of 1.5 notices per year.

--The proposed rule allows community water systems to meet the public

notice requirements for Tier 3 through the existing Consumer Confidence

Report (CCR). Tier 3 violations are primarily monitoring or testing

procedure violations. Systems that would otherwise incur a large labor

burden and postage burden for distributing a mail notice and paying for

a newspaper notice will be able to insert the text of the notice into

the CCR and incur no additional costs. EPA estimates that half of all

community water systems serving less than 10,000 and all community

systems serving more than 10,000 will use the CCR for Tier 3 notices.

--The estimated burden reduction for the proposed changes to the timing

and method of delivery for Tier 3 notices is approximately 210,000

hours (17.5 percent) and the cost reduction is approximately $6,500,000

(24.1 percent).

The proposed rule changes the required methods of delivery

for Tiers 1 and 2 notices. The existing rule requires both newspaper

and mail delivery for all tiers, although the primacy agency may waive

the mail requirement if it determines the violation has been resolved

within a given time. Those systems for whom no newspaper outlet is

available are allowed to hand deliver or post instead of mailing and

using the newspaper. Under the current rule, systems with Tier 1

violations must also issue a notice via television or radio. The

proposed rule requires only one method of delivery for Tier 2--mail or

hand delivery (or posting for non-community systems). The burden

reduction for Tier 2 is small, because it eliminates only newspaper

notices, which are estimated to take only 1 hour of labor. For Tier 1,

however, systems will have the option of issuing the notice via

electronic media, hand delivery, or posting. The burden reduction

resulting from the change in the Tier 1 and Tier 2 method of delivery

requirements in the proposed rule would be approximately 20,000 hours

(1.7 percent), and the cost reduction would be $2,600,000 (9.6

percent).

The estimated total savings resulting from the above changes to the

requirements in the proposed rule are approximately 230,000 hours (19.2

percent) and $9,100,000 (33.7 percent).

Several caveats should be borne in mind in interpreting these cost

estimates. A number of costs have been omitted from the estimates.

These include costs for Tier 1 notices for waterborne disease outbreaks

or other situations determined by the primacy agency to have the

potential for serious adverse health impacts as a result of short-term

exposure, costs for repeat notices for fecal coliform violations, costs

for notices on the availability of unregulated contaminant monitoring

results for systems that would not otherwise have to prepare an annual

notice, costs for stuffing notices into bills, costs for air time on

broadcast media if they refuse to run adequate notices as public

service announcements, costs for notices that cannot be included in

CCRs or customer bills because the required time frames preclude it,

costs for notices associated with the recently promulgated Stage 1

Disinfectants/Disinfection Byproducts (D/DBP) rule and the Interim

Enhanced Surface Water Treatment Rule (IESWTR), and costs to States

associated with adopting primacy regulations to implement the new

public notification requirements. EPA is continuing to refine its cost

estimates and will incorporate as many of these costs as possible into

its economic analysis for the final rule.

Most of these costs have been omitted from the analysis for the

proposed rule because they are not expected to be large and would not

significantly change the bottom line cost and burden estimates.

However, the public notification costs associated with violations of

the D/DBP rule and the IESWTR may be significant. These rules contain a

number of new standards as well as significant new monitoring

requirements, and will require a significant capital investment from

some systems. Because these two rules have not yet gone into effect,

EPA has omitted the cost estimates for the proposed public notification

rule. EPA does not currently have any basis on which to project the

annual number of violations requiring a public notice. However, EPA

recognizes that meeting the public notification requirements for these

new rules could raise the costs of the current and proposed public

notification rule significantly.

In considering the burden and cost reduction for the proposed rule

relative to the current requirements, it is important to keep in mind

that this comparison is based on assuming full compliance with both

rules. In fact, as documented in the GAO report, there has been

widespread non-compliance with the current requirements. EPA expects

that by clarifying and streamlining these requirements, the proposed

rule will result in a significantly higher level of compliance. To the

extent that this occurs, there will also be an increase in State and

water system resources devoted to public notification, despite the

savings estimated here because of the streamlined rule that is being

proposed. On the other hand, for those systems that have been complying

with public

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notice requirements all along, the proposed rule may result in genuine

cost and burden savings.

For more information about the costs of the rule and how EPA

developed the estimates, see the Supporting Statement for the EPA

Information Collection Request (ICR #1898.01) and the Regulatory

Flexibility Screening Analysis that EPA submitted for OMB approval. EPA

is requesting comment on its cost estimates and methodology.

VIII. Other Administrative Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to 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 environmen

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