# National Primary Drinking Water Regulations: Public Notification Rule

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-11162

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** May 13, 1999
- **Citation:** 64 FR 25964

## Text

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
----------------------------------------------------------------------------------------------------------------
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
C

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-11162. Public record. Not legal advice.