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Electronic Code of Federal Regulations

e-CFR Data is current as of August 20, 2014

Title 40Chapter ISubchapter D → Part 142


Title 40: Protection of Environment


PART 142—NATIONAL PRIMARY DRINKING WATER REGULATIONS IMPLEMENTATION


Contents

Subpart A—General Provisions

§142.1   Applicability.
§142.2   Definitions.
§142.3   Scope.
§142.4   State and local authority.

Subpart B—Primary Enforcement Responsibility

§142.10   Requirements for a determination of primary enforcement responsibility.
§142.11   Initial determination of primary enforcement responsibility.
§142.12   Revision of State programs.
§142.13   Public hearing.
§142.14   Records kept by States.
§142.15   Reports by States.
§142.16   Special primacy requirements.
§142.17   Review of State programs and procedures for withdrawal of approved primacy programs.
§142.18   EPA review of State monitoring determinations.
§142.19   EPA review of State implementation of national primary drinking water regulations for lead and copper.

Subpart C—Review of State-Issued Variances and Exemptions

§142.20   State-issued variances and exemptions under Section 1415(a) and Section 1416 of the Act.
§142.21   State consideration of a variance or exemption request.
§142.22   Review of State variances, exemptions and schedules.
§142.23   Notice to State.
§142.24   Administrator's rescission.

Subpart D—Federal Enforcement

§142.30   Failure by State to assure enforcement.
§142.31   [Reserved]
§142.32   Petition for public hearing.
§142.33   Public hearing.
§142.34   Entry and inspection of public water systems.

Subpart E—Variances Issued by the Administrator Under Section 1415(a) of the Act

§142.40   Requirements for a variance.
§142.41   Variance request.
§142.42   Consideration of a variance request.
§142.43   Disposition of a variance request.
§142.44   Public hearings on variances and schedules.
§142.45   Action after hearing.
§142.46   Alternative treatment techniques.

Subpart F—Exemptions Issued by the Administrator

§142.50   Requirements for an exemption.
§142.51   Exemption request.
§142.52   Consideration of an exemption request.
§142.53   Disposition of an exemption request.
§142.54   Public hearings on exemption schedules.
§142.55   Final schedule.
§142.56   Extension of date for compliance.
§142.57   Bottled water, point-of-use, and point-of-entry devices.

Subpart G—Identification of Best Technology, Treatment Techniques or Other Means Generally Available

§142.60   Variances from the maximum contaminant level for total trihalomethanes.
§142.61   Variances from the maximum contaminant level for fluoride.
§142.62   Variances and exemptions from the maximum contaminant levels for organic and inorganic chemicals.
§142.63   Variances and exemptions from the maximum contaminant level for total coliforms.
§142.64   Variances and exemptions from the requirements of part 141, subpart H—Filtration and Disinfection.
§142.65   Variances and exemptions from the maximum contaminant levels for radionuclides.

Subpart H—Indian Tribes

§142.72   Requirements for Tribal eligibility.
§142.76   Request by an Indian Tribe for a determination of eligibility.
§142.78   Procedure for processing an Indian Tribe's application.

Subpart I—Administrator's Review of State Decisions that Implement Criteria Under Which Filtration Is Required

§142.80   Review procedures.
§142.81   Notice to the State.

Subpart J [Reserved]

Subpart K—Variances for Small System

General Provisions

§142.301   What is a small system variance?
§142.302   Who can issue a small system variance?
§142.303   Which size public water systems can receive a small system variance?
§142.304   For which of the regulatory requirements is a small system variance available?
§142.305   When can a small system variance be granted by a State?

Review of Small System Variance Application

§142.306   What are the responsibilities of the public water system, State and the Administrator in ensuring that sufficient information is available and for evaluation of a small system variance application?
§142.307   What terms and conditions must be included in a small system variance?

Public Participation

§142.308   What public notice is required before a State or the Administrator proposes to issue a small system variance?
§142.309   What are the public meeting requirements associated with the proposal of a small system variance?
§142.310   How can a person served by the public water system obtain EPA review of a State proposed small system variance?

EPA Review And Approval of Small System Variances

§142.311   What procedures allow the Administrator to object to a proposed small system variance or overturn a granted small system variance for a public water system serving 3,300 or fewer persons?
§142.312   What EPA action is necessary when a State proposes to grant a small system variance to a public water system serving a population of more than 3,300 and fewer than 10,000 persons?
§142.313   How will the Administrator review a State's program under this subpart?

Authority: 42 U.S.C. 300f, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-4, 300j-9, and 300j-11.

Source: 41 FR 2918, Jan. 20, 1976, unless otherwise noted.

Subpart A—General Provisions

§142.1   Applicability.

This part sets forth, pursuant to sections 1413 through 1416, 1445, and 1450 of the Public Health Service Act, as amended by the Safe Drinking Water Act, Public Law 93-523, regulations for the implementation and enforcement of the national primary drinking water regulations contained in part 141 of this chapter.

§142.2   Definitions.

As used in this part, and except as otherwise specifically provided:

Act means the Public Health Service Act.

Administrator means the Administrator of the United States Environmental Protection Agency or his authorized representative.

Agency means the United States Environmental Protection Agency.

Approved State primacy program consists of those program elements listed in §142.11(a) that were submitted with the initial State application for primary enforcement authority and approved by the EPA Administrator and all State program revisions thereafter that were approved by the EPA Administrator.

Contaminant means any physical, chemical, biological, or radiological substance or matter in water.

Federal agency means any department, agency, or instrumentality of the United States.

Indian Tribe means any Indian Tribe having a Federally recognized governing body carrying out substantial governmental duties and powers over a defined area.

Interstate Agency means an agency of two or more States established by or under an agreement or compact approved by the Congress, or any other agency of two or more States or Indian Tribes having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator.

Maximum contaminant level means the maximum permissible level of a contaminant in water which is delivered to the free flowing outlet of the ultimate user of a public water system; except in the case of turbidity where the maximum permissible level is measured at the point of entry to the distribution system. Contaminants added to the water under circumstances controlled by the user, except for those resulting from corrosion of piping and plumbing caused by water quality are excluded from this definition.

Municipality means a city, town, or other public body created by or pursuant to State law, or an Indian Tribe which does not meet the requirements of subpart H of this part.

National primary drinking water regulation means any primary drinking water regulation contained in part 141 of this chapter.

Person means an individual; corporation; company; association; partnership; municipality; or State, federal, or Tribal agency.

Primary enforcement responsibility means the primary responsibility for administration and enforcement of primary drinking water regulations and related requirements applicable to public water systems within a State.

Public water system or PWS means 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 an average of at least twenty-five individuals daily at least 60 days out of the year. Such term includes:

Any collection, treatment, storage, and distribution facilities under control of the operator of such system and used primarily in connection with such system; and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. Such term does not include any “special irrigation district.” A public water system is either a “community water system” or a “noncommunity water system” as defined in §141.2.

Sanitary survey means an onsite review of the water source, facilities, equipment, operation and maintenance of a public water system for the purpose of evaluating the adequacy of such source, facilities, equipment, operation and maintenance for producing and distributing safe drinking water.

Service connection, as used in the definition of public water system, does not include a connection to a system that delivers water by a constructed conveyance other than a pipe if:

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

(2) The Administrator or the State exercising primary enforcement responsibility for public water systems, determines that alternative water to achieve the equivalent level of public health protection provided by the applicable national primary drinking water regulation is provided for residential or similar uses for drinking and cooking; or

(3) The Administrator or the State exercising primary enforcement responsibility for public water systems, determines that the water provided for residential or similar uses for drinking, cooking, and bathing is centrally treated or treated at the point of entry by the provider, a pass-through entity, or the user to achieve the equivalent level of protection provided by the applicable national primary drinking water regulations.

Special irrigation district means an irrigation district in existence prior to May 18, 1994 that provides primarily agricultural service through a piped water system with only incidental residential or similar use where the system or the residential or similar users of the system comply with the exclusion provisions in section 1401(4)(B)(i)(II) or (III).

State means one of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust Territory of the Pacific Islands, or an eligible Indian tribe.

State primary drinking water regulation means a drinking water regulation of a State which is comparable to a national primary drinking water regulation.

State program revision means a change in an approved State primacy program.

Supplier of water means any person who owns or operates a public water system.

Treatment technique requirement means a requirement of the national primary drinking water regulations which specifies for a contaminant a specific treatment technique(s) known to the Administrator which leads to a reduction in the level of such contaminant sufficient to comply with the requirements of part 141 of this chapter.

[41 FR 2918, Jan. 20, 1976, as amended at 53 FR 37410, Sept. 26, 1988; 54 FR 52137, Dec. 20, 1989; 59 FR 64344, Dec. 14, 1994; 63 FR 23367, Apr. 28, 1998]

§142.3   Scope.

(a) Except where otherwise provided, this part applies to each public water system in each State; except that this part shall not apply to a public water system which meets all of the following conditions:

(1) Which consists only of distribution and storage facilities (and does not have any collection and treatment facilities);

(2) Which obtains all of its water from, but is not owned or operated by, a public water system to which such regulations apply;

(3) Which does not sell water to any person; and

(4) Which is not a carrier which conveys passengers in interstate commerce.

(b) In order to qualify for primary enforcement responsibility, a State's program for enforcement of primary drinking water regulations must apply to all other public water systems in the State, except for:

(1) Public water systems on carriers which convey passengers in interstate commerce;

(2) Public water systems on Indian land with respect to which the State does not have the necessary jurisdiction or its jurisdiction is in question; or

(c) Section 1451 of the SDWA authorizes the Administrator to delegate primary enforcement responsibility for public water systems to Indian Tribes. An Indian Tribe must meet the statutory criteria at 42 U.S.C. 300j-11(b)(1) before it is eligible to apply for Public Water System Supervision grants and primary enforcement responsibility. All primary enforcement responsibility requirements of parts 141 and 142 apply to Indian Tribes except where specifically noted.

[41 FR 2918, Jan. 20, 1976, as amended at 53 FR 37410, Sept. 26, 1988; 59 FR 64344, Dec. 14, 1994; 67 FR 70858, Nov. 27, 2002]

§142.4   State and local authority.

Nothing in this part shall diminish any authority of a State or political subdivision to adopt or enforce any law or regulation respecting drinking water regulations or public water systems, but no such law or regulation shall relieve any person of any requirements otherwise applicable under this part.

Subpart B—Primary Enforcement Responsibility

§142.10   Requirements for a determination of primary enforcement responsibility.

A State has primary enforcement responsibility for public water systems in the State during any period for which the Administrator determines, based upon a submission made pursuant to §142.11, and submission under §142.12, that such State, pursuant to appropriate State legal authority:

(a) Has adopted drinking water regulations which are no less stringent than the national primary drinking water regulations (NPDWRs) in effect under part 141 of this chapter;

(b) Has adopted and is implementing adequate procedures for the enforcement of such State regulations, such procedures to include:

(1) Maintenance of an inventory of public water systems.

(2) A systematic program for conducting sanitary surveys of public water systems in the State, with priority given to sanitary surveys of public water systems not in compliance with State primary drinking water regulations.

(3)(i) The establishment and maintenance of a State program for the certification of laboratories conducting analytical measurements of drinking water contaminants pursuant to the requirements of the State primary drinking water regulations including the designation by the State of a laboratory officer, or officers, certified by the Administrator, as the official(s) responsible for the State's certification program. The requirements of this paragraph may be waived by the Administrator for any State where all analytical measurements required by the State's primary drinking water regulations are conducted at laboratories operated by the State and certified by the Agency. Until such time as the Agency establishes a National quality assurance program for laboratory certification the State shall maintain an interim program for the purpose of approving those laboratories from which the required analytical measurements will be acceptable.

(ii) Upon a showing by an Indian Tribe of an intergovernmental or other agreement to have all analytical tests performed by a certified laboratory, the Administrator may waive this requirement.

(4) Assurance of the availability to the State of laboratory facilities certified by the Administrator and capable of performing analytical measurements of all contaminants specified in the State primary drinking water regulations. Until such time as the Agency establishes a National quality assurance program for laboratory certification the Administrator will approve such State laboratories on an interim basis.

(5) The establishment and maintenance of an activity to assure that the design and construction of new or substantially modified public water system facilities will be capable of compliance with the State primary drinking water regulations.

(6) Statutory or regulatory enforcement authority adequate to compel compliance with the State primary drinking water regulations in appropriate cases, such authority to include:

(i) Authority to apply State primary drinking water regulations to all public water systems in the State covered by the national primary drinking water regulations, except for interstate carrier conveyances and systems on Indian land with respect to which the State does not have the necessary jurisdiction or its jurisdiction is in question.

(ii) Authority to sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of the State primary drinking water regulations.

(iii) Right of entry and inspection of public water systems, including the right to take water samples, whether or not the State has evidence that the system is in violation of an applicable legal requirement.

(iv) Authority to require suppliers of water to keep appropriate records and make appropriate reports to the State.

(v) Authority to require public water systems to give public notice that is no less stringent than the EPA requirements in subpart Q of part 141 of this chapter and §142.16(a).

(vi) Authority to assess civil or criminal penalties for violation of the State's primary drinking water regulations and public notification requirements, including the authority to assess daily penalties or multiple penalties when a violation continues;

(vii) Authority to require community water systems to provide consumer confidence reports as required under 40 CFR part 141, subpart O.

(c) Has established and will maintain record keeping and reporting of its activities under paragraphs (a), (b) and (d) in compliance with §§142.14 and 142.15;

(d) Variances and exemptions. (1) If it permits small system variances pursuant to Section 1415(e) of the Act, it must provide procedures no less stringent than the Act and Subpart K of this part.

(2) If it permits variances (other than small system variances) or exemptions, or both, from the requirements of the State primary drinking water regulations, it shall do so under conditions and in a manner no less stringent than the requirements of Sections 1415 and 1416 of the Act. In granting these variances, the State must adopt the Administrator's findings of best available technology, treatment techniques, or other means available as specified in Subpart G of this part. (States with primary enforcement responsibility may adopt procedures different from those set forth in Subparts E and F of this part, which apply to the issuance of variances (other than small system variances) and exemptions by the Administrator in States that do not have primary enforcement responsibility, provided that the State procedures meet the requirements of this paragraph); and

(e) Has adopted and can implement an adequate plan for the provision of safe drinking water under emergency circumstances including, but not limited to, earthquakes, floods, hurricanes, and other natural disasters.

(f)(1) Has adopted authority for assessing administrative penalties unless the constitution of the State prohibits the adoption of such authority. For public water systems serving a population of more than 10,000 individuals, States must have the authority to impose a penalty of at least $1,000 per day per violation. For public water systems serving a population of 10,000 or fewer individuals, States must have penalties that are adequate to ensure compliance with the State regulations as determined by the State.

(2) As long as criteria in paragraph (f)(1) of this section are met, States may establish a maximum administrative penalty per violation that may be assessed on a public water system.

(g) Has adopted regulations consistent with 40 CFR part 3—(Electronic reporting) if the state receives electronic documents.

(h) An Indian Tribe shall not be required to exercise criminal enforcement jurisdiction to meet the requirements for primary enforcement responsibility.

[41 FR 2918, Jan. 20, 1976, as amended at 43 FR 5373, Feb. 8, 1978; 52 FR 20675, June 2, 1987; 52 FR 41550, Oct. 28, 1987; 53 FR 37410, Sept. 26, 1988; 54 FR 15188, Apr. 17, 1989; 54 FR 52138, Dec. 20, 1989; 63 FR 23367, Apr. 28, 1998; 63 FR 43846, Aug. 14, 1998; 63 FR 44535, Aug. 19, 1998; 65 FR 26048, May 4, 2000; 70 FR 59888, Oct. 13, 2005]

§142.11   Initial determination of primary enforcement responsibility.

(a) A State may apply to the Administrator for a determination that the State has primary enforcement responsibility for public water systems in the State pursuant to section 1413 of the Act. The application shall be as concise as possible and include a side-by-side comparison of the Federal requirements and the corresponding State authorities, including citations to the specific statutes and administrative regulations or ordinances and, wherever appropriate, judicial decisions which demonstrate adequate authority to meet the requirements of §142.10. The following information is to be included with the State application.

(1) The text of the State's primary drinking water regulations, with references to those State regulations that vary from comparable regulations set forth in part 141 of this chapter, and a demonstration that any different State regulation is at least as stringent as the comparable regulation contained in part 141.

(2) A description, accompanied by appropriate documentation, of the State's procedures for the enforcement of the State primary drinking water regulations. The submission shall include:

(i) A brief description of the State's program to maintain a current inventory of public water systems.

(ii) A brief description of the State's program for conducting sanitary surveys, including an explanation of the priorities given to various classes of public water systems.

(iii) A brief description of the State's laboratory approval or certification program, including the name(s) of the responsible State laboratory officer(s) certified by the Administrator.

(iv) Identification of laboratory facilities, available to the State, certified or approved by the Administrator and capable of performing analytical measurements of all contaminants specified in the State's primary drinking water regulations.

(v) A brief description of the State's program activity to assure that the design and construction of new or substantially modified public water system facilities will be capable of compliance with the requirements of the State primary drinking water regulations.

(vi) Copies of State statutory and regulatory provisions authorizing the adoption and enforcement of State primary drinking water regulations, and a brief description of State procedures for administrative or judicial action with respect to public water systems not in compliance with such regulations.

(3) A statement that the State will make such reports and will keep such records as may be required pursuant to §§142.14 and 142.15.

(4) If the State permits variances or exemptions from its primary drinking water regulations, the text of the State's statutory and regulatory provisions concerning variances and exemptions.

(5) A brief description of the State's plan for the provision of safe drinking water under emergency conditions.

Note: In satisfaction of this requirement, for public water supplies from groundwater sources, EPA will accept the contingency plan for providing alternate drinking water supplies that is part of a State's Wellhead Protection Program, where such program has been approved by EPA pursuant to section 1428 of the SDWA.

(6)(i) A copy of the State statutory and regulatory provisions authorizing the executive branch of the State government to impose an administrative penalty on all public water systems, and a brief description of the State's authority for administrative penalties that will ensure adequate compliance of systems serving a population of 10,000 or fewer individuals.

(ii) In instances where the State constitution prohibits the executive branch of the State government from assessing any penalty, the State shall submit a copy of the applicable part of its constitution and a statement from its Attorney General confirming this interpretation.

(7)(i) A statement by the State Attorney General (or the attorney for the State primacy agency if it has independent legal counsel) or the attorney representing the Indian tribe that certifies that the laws and regulations adopted by the State or tribal ordinances to carry out the program were duly adopted and are enforceable. State statutes and regulations cited by the State Attorney General and tribal ordinances cited by the attorney representing the Indian tribe shall be in the form of lawfully adopted State statutes and regulations or tribal ordinances at the time the certification is made and shall be fully effective by the time the program is approved by EPA. To qualify as “independent legal counsel,” the attorney signing the statement required by this section shall have full authority to independently represent the State primacy agency or Indian tribe in court on all matters pertaining to the State or tribal program.

(ii) After EPA has received the documents required under paragraph (a) of this section, EPA may selectively require supplemental statements by the State Attorney General (or the attorney for the State primacy agency if it has independent legal counsel) or the attorney representing the Indian tribe. Each supplemental statement shall address all issues concerning the adequacy of State authorities to meet the requirements of §142.10 that have been identified by EPA after thorough examination as unresolved by the documents submitted under paragraph (a) of this section.

(b)(1) The administrator shall act on an application submitted pursuant to §142.11 within 90 days after receiving such application, and shall promptly inform the State in writing of this action. If he denies the application, his written notification to the State shall include a statement of reasons for the denial.

(2) A final determination by the Administrator that a State has met or has not met the requirements for primary enforcement responsibility shall take effect in accordance with the public notice requirements and related procedures under §142.13.

(3) When the Administrator's determination becomes effective pursuant to §142.13, it shall continue in effect unless terminated pursuant to §142.17.

[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 52138, Dec. 20, 1989; 60 FR 33661, June 28, 1995; 63 FR 23367, Apr. 28, 1998]

§142.12   Revision of State programs.

(a) General requirements. Either EPA or the primacy State may initiate actions that require the State to revise its approved State primacy program. To retain primary enforcement responsibility, States must adopt all new and revised national primary drinking water regulations promulgated in part 141 of this chapter and any other requirements specified in this part.

(1) Whenever a State revises its approved primacy program to adopt new or revised Federal regulations, the State must submit a request to the Administrator for approval of the program revision, using the procedures described in paragraphs (b), (c), and (d) of this section. The Administrator shall approve or disapprove each State request for approval of a program revision based on the requirements of the Safe Drinking Water Act and of this part.

(2) For all State program revisions not covered under §142.12(a)(1), the review procedures outlined in §142.17(a) shall apply.

(b) Timing of State requests for approval of program revisions to adopt new or revised Federal regulations. (1) Complete and final State requests for approval of program revisions to adopt new or revised EPA regulations must be submitted to the Administrator not later than 2 years after promulgation of the new or revised EPA regulations, unless the State requests an extension and the Administrator has approved the request pursuant to paragraph (b)(2) of this section. If the State expects to submit a final State request for approval of a program revision to EPA more than 2 years after promulgation of the new or revised EPA regulations, the State shall request an extension of the deadline before the expiration of the 2-year period.

(2) The final date for submission of a complete and final State request for a program revision may be extended by EPA for up to a two-year period upon a written application by the State to the Administrator. In the extension application the State must demonstrate it is requesting the extension because it cannot meet the original deadline for reasons beyond its control despite a good faith effort to do so. The application must include a schedule for the submission of a final request by a certain time and provide sufficient information to demonstrate that the State:

(i)(A) Currently lacks the legislative or regulatory authority to enforce the new or revised requirements, or

(B) Currently lacks the program capability adequate to implement the new or revised requirements; or

(C) Is requesting the extension to group two or more program revisions in a single legislative or regulatory action; and

(ii) Is implementing the EPA requirements to be adopted by the State in its program revision pursuant to paragraph (b)(3) of this section within the scope of its current authority and capabilities.

(3) To be granted an extension, the State must agree with EPA to meet certain requirements during the extension period, which may include the following types of activities as determined appropriate by the Administrator on a case-by-case basis:

(i) Informing public water systems of the new EPA (and upcoming State) requirements and that EPA will be overseeing implementation of the requirements until the State, if eligible for interim primacy, submits a complete and final primacy revision request to EPA, or in all other cases, until EPA approves the State program revision;

(ii) Collecting, storing and managing laboratory results, public notices, and other compliance and operation data required by the EPA regulations;

(iii) Assisting EPA in the development of the technical aspects of enforcement actions and conducting informal follow-up on violations (telephone calls, letters, etc.);

(iv) Providing technical assistance to public water systems;

(v) Providing EPA with all information prescribed by §142.15 of this part on State reporting; and

(vi) For States whose request for an extension is based on a current lack of program capability adequate to implement the new requirements, taking steps agreed to by EPA and the State during the extension period to remedy the deficiency.

(c) Contents of a State request for approval of a program revision. (1) The State request for EPA approval of a program revision shall be concise and must include:

(i) The documentation necessary (pursuant to §142.11(a)) to update the approved State primacy program, and identification of those elements of the approved State primacy program that have not changed because of the program revision. The documentation shall include a side-by-side comparison of the Federal requirements and the corresponding State authorities, including citations to the specific statutes and administrative regulations or ordinances and, wherever appropriate, judicial decisions which demonstrate adequate authority to meet the requirements of §142.10 as they apply to the program revision.

(ii) Any additional materials that are listed in §142.16 of this part for a specific EPA regulation, as appropriate; and

(iii) For a complete and final State request only, unless one of the conditions listed in paragraph (c)(2) of this section are met, a statement by the State Attorney General (or the attorney for the State primacy agency if it has independent legal counsel) or the attorney representing the Indian tribe that certifies that the laws and regulations adopted by the State or tribal ordinances to carry out the program revision were duly adopted and are enforceable. State statutes and regulations cited by the State Attorney General and tribal ordinances cited by the attorney for the Indian tribe shall be in the form of lawfully adopted State statutes and regulations or tribal ordinances at the time the certification is made and shall be fully effective by the time the request for program revision is approved by EPA. To qualify as “independent legal counsel,” the attorney signing the statement required by this section shall have full authority to independently represent the State primacy agency or tribe in court on all matters pertaining to the State or tribal program.

(2) An Attorney General's statement will be required as part of the State request for EPA approval of a program revision unless EPA specifically waives this requirement for a specific regulation at the time EPA promulgates the regulation, or by later written notice from the Administrator to the State.

(3) After EPA has received the documents required under paragraph (c)(1) of this section, EPA may selectively require supplemental statements by the State Attorney General (or the attorney for the State primacy agency if it has independent legal counsel) or the attorney representing the Indian tribe. Each supplemental statement shall address all issues concerning the adequacy of State authorities to meet the requirements of §142.10 that have been identified by EPA after thorough examination as unresolved by the documents submitted under paragraph (c)(1) of this section.

(d) Procedures for review of a State request for approval of a program revision—(1) Preliminary request. (i) The State may submit to the Administrator for his or her review a preliminary request for approval of each program revision, containing the information listed in paragraph (c)(1) of this section, in draft form. The preliminary request does not require an Attorney General's statement in draft form, but does require draft State statutory or regulatory changes and a side-by-side comparison of State authorities with EPA requirements to demonstrate that the State program revision meets EPA requirements under §142.10 of this part. The preliminary request should be submitted to the Administrator as soon as practicable after the promulgation of the EPA regulations.

(ii) The Administrator will review the preliminary request submitted in accordance with paragraph (d)(1)(i) of this section and make a tentative determination on the request. The Administrator will send the tentative determination and other comments or suggestions to the State for its use in developing the State's final request under paragraph (d)(2) of this section.

(2) Final request. The State must submit a complete and final request for approval of a program revision to the Administrator for his or her review and approval. The request must contain the information listed in paragraph (c)(1) of this section in complete and final form, in accordance with any tentative determination EPA may have issued. Complete and final State requests for program revisions shall be submitted within two years of the promulgation of the new or revised EPA regulations, as specified in paragraph (b) of this section.

(3) EPA's determination on a complete and final request. (i) The Administrator shall act on a State's request for approval of a program revision within 90 days after determining that the State request is complete and final and shall promptly notify the State of his/her determination.

(ii) If the Administrator disapproves a final request for approval of a program revision, the Administrator will notify the State in writing. Such notification will include a statement of the reasons for disapproval.

(iii) A final determination by the Administrator on a State's request for approval of a program revision shall take effect in accordance with the public notice requirements and related procedures under §142.13.

(e) Interim primary enforcement authority. A State with an approved primacy program for each existing national primary drinking water regulation shall be considered to have interim primary enforcement authority with respect to each new or revised national drinking water regulation that it adopts beginning when the new or revised State regulation becomes effective or when the complete primacy revision application is submitted to the Administrator, whichever is later, and shall end when the Administrator approves or disapproves the State's revised primacy program.

[54 FR 52138, Dec. 20, 1989, as amended at 63 FR 23367, Apr. 28, 1998; 66 FR 3780, Jan. 16, 2001]

§142.13   Public hearing.

(a) The Administrator shall provide an opportunity for a public hearing before a final determination pursuant to §142.11 that the State meets or does not meet the requirements for obtaining primary enforcement responsibility, or a final determination pursuant to §142.12(d)(3) to approve or disapprove a State request for approval of a program revision, or a final determination pursuant to §142.17 that a State no longer meets the requirements for primary enforcement responsibility.

(b) The Administrator shall publish notice of any determination specified in paragraph (a) of this section in the Federal Register and in a newspaper or newspapers of general circulation in the State involved within 15 days after making such determination, with a statement of his reasons for the determination. Such notice shall inform interested persons that they may request a public hearing on the Administrator's determination. Such notice shall also indicate one or more locations in the State where information submitted by the State pursuant to §142.11 is available for inspection by the general public. A public hearing may be requested by any interested person other than a Federal agency. Frivolous or insubstantial requests for hearing may be denied by the Administrator.

(c) Requests for hearing submitted pursuant to paragraph (b) of this section shall be submitted to the Administrator within 30 days after publication of notice of opportunity for hearing in the Federal Register. Such requests shall include the following information:

(1) The name, address and telephone number of the individual, organization or other entity requesting a hearing.

(2) A brief statement of the requesting person's interest in the Administrator's determination and of information that the requesting person intends to submit at such hearing.

(3) The signature of the individual making the request; or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.

(d) The Administrator shall give notice in the Federal Register and in a newspaper or newspapers of general circulation in the State involved of any hearing to be held pursuant to a request submitted by an interested person or on his own motion. Notice of the hearing shall also be sent to the person requesting a hearing, if any, and to the State involved. Notice of the hearing shall include a statement of the purpose of the hearing, information regarding the time and location or locations for the hearing and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing. At least one hearing location specified in the public notice shall be within the involved State. Notice of hearing shall be given not less than 15 days prior to the time scheduled for the hearing.

(e) Hearings convened pursuant to paragraph (d) of this section shall be conducted before a hearing officer to be designated by the Administrator. The hearing shall be conducted by the hearing officer in an informal, orderly and expeditious manner. The hearing officer shall have authority to call witnesses, receive oral and written testimony and take such other action as may be necessary to assure the fair and efficient conduct of the hearing. Following the conclusion of the hearing, the hearing officer shall forward the record of the hearing to the Administrator.

(f) After reviewing the record of the hearing, the Administrator shall issue an order affirming the determination referred to in paragraph (a) of this section or rescinding such determination. If the determination is affirmed, it shall become effective as of the date of the Administrator's order.

(g) If no timely request for hearing is received and the Administrator does not determine to hold a hearing on his own motion, the Administrator's determination shall become effective 30 days after notice is issued pursuant to paragraph (b) of this section.

(h) If a determination of the Administrator that a State no longer meets the requirements for primary enforcement responsibility becomes effective, the State may subsequently apply for a determination that it meets such requirements by submitting to the Administrator information demonstrating that it has remedied the deficiencies found by the Administrator without adversely sacrificing other aspects of its program required for primary enforcement responsibility.

[41 FR 2918, Jan. 20, 1976, as amended at 54 FR 52140, Dec. 20, 1989; 60 FR 33661, June 28, 1995]

§142.14   Records kept by States.

(a) Each State which has primary enforcement responsibility shall maintain records of tests, measurements, analyses, decisions, and determinations performed on each public water system to determine compliance with applicable provisions of State primary drinking water regulations.

(1) Records of microbiological analyses shall be retained for not less than 1 year. Actual laboratory reports may be kept or data may be transferred to tabular summaries, provided that the information retained includes:

(i) The analytical method used;

(ii) The number of samples analyzed each month;

(iii) The analytical results, set forth in a form that makes possible comparison with the limits specified in §§141.63, 141.71, and 141.72 of this chapter and with the limits specified in subpart Y of this chapter.

(2) Records of microbiological analyses of repeat or special samples shall be retained for not less than one year in the form of actual laboratory reports or in an appropriate summary form.

(3) Records of turbidity measurements must be kept for not less than one year. The information retained must be set forth in a form which makes possible comparison with the limits specified in §§141.71, 141.73, 141.173 and 141.175, 141.550-141.553 and 141.560-141.564 of this chapter. Until June 29, 1993, for any public water system which is providing filtration treatment and until December 30, 1991, for any public water system not providing filtration treatment and not required by the State to provide filtration treatment, records kept must be set forth in a form which makes possible comparison with the limits contained in §141.13 of this chapter.

(4)(i) Records of disinfectant residual measurements and other parameters necessary to document disinfection effectiveness in accordance with §§141.72 and 141.74 of this chapter and the reporting requirements of §§141.75, 141.175, and 141.570, of this chapter must be kept for not less than one year.

(ii) Records of decisions made on a system-by-system and case-by-case basis under provisions of part 141, subpart H, subpart P, or subpart T of this chapter, must be made in writing and kept by the State.

(A) Records of decisions made under the following provisions shall be kept for 40 years (or until one year after the decision is reversed or revised) and a copy of the decision must be provided to the system:

(1) Section 141.73(a)(1)—Any decision to allow a public water system using conventional filtration treatment or direct filtration to substitute a turbidity limit greater than 0.5 NTU;

(2) Section 141.73(b)(1)—Any decision to allow a public water system using slow sand filtration to substitute a turbidity limit greater than 1 NTU;

(3) Section 141.74(b)(2)—Any decision to allow an unfiltered public water system to use continuous turbidity monitoring;

(4) Section 141.74(b)(6)(i)—Any decision to allow an unfiltered public water system to sample residual disinfectant concentration at alternate locations if it also has ground water source(s);

(5) Section 141.74(c)(1)—Any decision to allow a public water system using filtration treatment to use continuous turbidity monitoring; or a public water system using slow sand filtration or filtration treatment other than conventional treatment, direct filtration or diatomaceous earth filtration to reduce turbidity sampling to once per day; or for systems serving 500 people or fewer to reduce turbidity sampling to once per day;

(6) Section 141.74(c)(3)(i)—Any decision to allow a filtered public water system to sample disinfectant residual concentration at alternate locations if it also has ground water source(s);

(7) Section 141.75(a)(2)(ix)—Any decision to allow reduced reporting by an unfiltered public water system;

(8) Section 141.75(b)(2)(iv)—Any decision to allow reduced reporting by a filtered public water system; and

(9) Section 141.76—Any decisions made to approve alternate recycle locations, require modifications to recycle return locations, or require modifications to recycle practices.

(B) Records of decisions made under the following provisions shall be kept for one year after the decision is made:

(1) Section 141.71(b)(1)(i)—Any decision that a violation of monthly CT compliance requirements was caused by circumstances that were unusual and unpredictable.

(2) Section 141.71(b)(1)(iv)—Any decision that a violation of the disinfection effectiveness criteria was not caused by a deficiency in treatment of the source water;

(3) Section 141.71(b)(5)—Any decision that a violation of the total coliform MCL was not caused by a deficiency in treatment of the source water;

(4) Section 141.74(b)(1)—Any decision that total coliform monitoring otherwise required because the turbidity of the source water exceeds 1 NTU is not feasible, except that if such decision allows a system to avoid monitoring without receiving State approval in each instance, records of the decision shall be kept until one year after the decision is rescinded or revised.

(C) Records of decisions made under the following provisions shall be kept for the specified period or 40 years, whichever is less.

(1) Section 141.71(a)(2)(i)—Any decision that an event in which the source water turbidity which exceeded 5 NTU for an unfiltered public water system was unusual and unpredictable shall be kept for 10 years.

(2) Section 141.71(b)(1)(iii)—Any decision by the State that failure to meet the disinfectant residual concentration requirements of §141.72(a)(3)(i) was caused by circumstances that were unusual and unpredictable, shall be kept unless filtration is installed. A copy of the decision must be provided to the system.

(3) Section 141.71(b)(2)—Any decision that a public water system's watershed control program meets the requirements of this section shall be kept until the next decision is available and filed.

(4) Section 141.70(c)—Any decision that an individual is a qualified operator for a public water system using a surface water source or a ground water source under the direct influence of surface water shall be maintained until the qualification is withdrawn. The State may keep this information in the form of a list which is updated periodically. If such qualified operators are classified by category, the decision shall include that classification.

(5) Section 141.71(b)(3)—Any decision that a party other than the State is approved by the State to conduct on-site inspections shall be maintained until withdrawn. The State may keep this information in the form of a list which is updated periodically.

(6) Section 141.71(b)(4)—Any decision that an unfiltered public water system has been identified as the source of a waterborne disease outbreak, and, if applicable, that it has been modified sufficiently to prevent another such occurrence shall be kept until filtration treatment is installed. A copy of the decision must be provided to the system.

(7) Section 141.72—Any decision that certain interim disinfection requirements are necessary for an unfiltered public water system for which the State has determined that filtration is necessary, and a list of those requirements, shall be kept until filtration treatment is installed. A copy of the requirements must be provided to the system.

(8) Section 141.72(a)(2)(ii)—Any decision that automatic shut-off of delivery of water to the distribution system of an unfiltered public water system would cause an unreasonable risk to health or interfere with fire protection shall be kept until rescinded.

(9) Section 141.72(a)(4)(ii)—Any decision by the State, based on site-specific considerations, that an unfiltered system has no means for having a sample transported and analyzed for HPC by a certified laboratory under the requisite time and temperature conditions specified by §141.74(a)(3) and that the system is providing adequate disinfection in the distribution system, so that the disinfection requirements contained in §141.72(a)(4)(i) do not apply, and the basis for the decision, shall be kept until the decision is reversed or revised. A copy of the decision must be provided to the system.

(10) Section 141.72(b)(3)(ii)—Any decision by the State, based on site-specific conditions, that a filtered system has no means for having a sample transported and analyzed for HPC by a certified laboratory under the requisite time and temperature conditions specified by §141.74(a)(3) and that the system is providing adequate disinfection in the distribution system, so that the disinfection requirements contained in §141.72(b)(3)(i) do not apply, and the basis for the decision, shall be kept until the decision is reversed or revised. A copy of the decision must be provided to the system.

(11) Section 141.73(d)—Any decision that a public water system, having demonstrated to the State that an alternative filtration technology, in combination with disinfection treatment, consistently achieves 99.9 percent removal and/or inactivation of Giardia lamblia cysts and 99.99 percent removal and/or inactivation of viruses, may use such alternative filtration technology, shall be kept until the decision is reversed or revised. A copy of the decision must be provided to the system.

(12) Section 141.74(b), table 3.1—Any decision that a system using either preformed chloramines or chloramines formed by the addition of ammonia prior to the addition of chlorine has demonstrated that 99.99 percent removal and/or inactivation of viruses has been achieved at particular CT values, and a list of those values, shall be kept until the decision is reversed or revised. A copy of the list of required values must be provided to the system.

(13) Section 141.74(b)(3)(v)—Any decision that a system using a disinfectant other than chlorine may use CT99.9 values other than those in tables 2.1 or 3.1 and/or other operational parameters to determine if the minimum total inactivation rates required by §141.72(a)(1) are being met, and what those values or parameters are, shall be kept until the decision is reversed or revised. A copy of the list of required values or parameters must be provided to the system.

(14) Section 142.16(b)(2)(i)(B)—Any decision that a system using a ground water source is under the direct influence of surface water.

(iii) Records of any determination that a public water system supplied by a surface water source or a ground water source under the direct influence of surface water is not required to provide filtration treatment shall be kept for 40 years or until withdrawn, whichever is earlier. A copy of the determination must be provided to the system.

(5) Records of each of the following decisions made pursuant to the total coliform provisions of part 141 shall be made in writing and retained by the State.

(i) Records of the following decisions must be retained for 5 years.

(A) Section 141.21(b)(1)—Any decision to waive the 24-hour time limit for collecting repeat samples after a total coliform-positive routine sample if the public water system has a logistical problem in collecting the repeat sample that is beyond the system's control, and what alternative time limit the system must meet.

(B) Section 141.21(b)(5)—Any decision to allow a system to waive the requirement for five routine samples the month following a total coliform-positive sample. If the waiver decision is made as provided in §141.21(b)(5), the record of the decision must contain all the items listed in that paragraph.

(C) Section 141.21(c)—Any decision to invalidate a total coliform-positive sample. If the decision to invalidate a total coliform-positive sample as provided in §141.21(c)(1)(iii) is made, the record of the decision must contain all the items listed in that paragraph.

(ii) Records of each of the following decisions must be retained in such a manner so that each system's current status may be determined.

(A) Section 141.21(a)(2)—Any decision to reduce the total coliform monitoring frequency for a community water system serving 1,000 persons or fewer, that has no history of total coliform contamination in its current configuration and had a sanitary survey conducted within the past five years showing that the system is supplied solely by a protected groundwater source and is free of sanitary defects, to less than once per month, as provided in §141.21(a)(2); and what the reduced monitoring frequency is. A copy of the reduced monitoring frequency must be provided to the system.

(B) Section 141.21(a)(3)(i)—Any decision to reduce the total coliform monitoring frequency for a non-community water system using only ground water and serving 1,000 persons or fewer to less than once per quarter, as provided in §141.21(a)(3)(i), and what the reduced monitoring frequency is. A copy of the reduced monitoring frequency must be provided to the system.

(C) Section 141.21(a)(3)(ii)—Any decision to reduce the total coliform monitoring frequency for a non-community water system using only ground water and serving more than 1,000 persons during any month the system serves 1,000 persons or fewer, as provided in §141.21(a)(3)(ii). A copy of the reduced monitoring frequency must be provided to the system.

(D) Section 141.21(a)(5)—Any decision to waive the 24-hour limit for taking a total coliform sample for a public water system which uses surface water, or ground water under the direct influence of surface water, and which does not practice filtration in accordance with part 141, subpart H, and which measures a source water turbidity level exceeding 1 NTU near the first service connection as provided in §141.21(a)(5).

(E) Section 141.21(d)(1)—Any decision that a non-community water system is using only protected and disinfected ground water and therefore may reduce the frequency of its sanitary survey to less than once every five years, as provided in §141.21(d), and what that frequency is. A copy of the reduced frequency must be provided to the system.

(F) Section 141.21(d)(2)—A list of agents other than the State, if any, approved by the State to conduct sanitary surveys.

(G) Section 141.21(e)(2)—Any decision to allow a public water system to forgo fecal coliform or E. coli testing on a total coliform-positive sample if that system assumes that the total coliform-positive sample is fecal coliform-positive or E. coli- positive, as provided in §141.21(e)(2).

(6) Records of analysis for other than microbiological contaminants (including total coliform, fecal coliform, and heterotrophic plate count), residual disinfectant concentration, other parameters necessary to determine disinfection effectiveness (including temperature and pH measurements), and turbidity shall be retained for not less than 12 years and shall include at least the following information:

(i) Date and place of sampling.

(ii) Date and results of analyses.

(7) Any decisions made pursuant to the provisions of part 141, subpart P or subpart T of this chapter.

(i) Records of systems consulting with the State concerning a modification to disinfection practice under §§141.170(d), 141.172(c), and 141.542 of this chapter, including the status of the consultation.

(ii) Records of decisions that a system using alternative filtration technologies, as allowed under §§141.173(b) and §141.552 of this chapter, can consistently achieve a 99.9 percent removal and/or inactivation of Giardia lamblia cysts, 99.99 percent removal and/or inactivation of viruses, and 99 percent removal of Cryptosporidium oocysts. The decisions must include State-set enforceable turbidity limits for each system. A copy of the decision must be kept until the decision is reversed or revised. The State must provide a copy of the decision to the system.

(iii) Records of systems required to do filter self-assessment, CPE, or CCP under the requirements of §§141.175 and 141.563 of this chapter.

(8) Any decisions made pursuant to the provisions of 40 CFR part 141, subparts U and V of this part.

(i) IDSE monitoring plans, plus any modifications required by the State, must be kept until replaced by approved IDSE reports.

(ii) IDSE reports and 40/30 certifications, plus any modifications required by the State, must be kept until replaced or revised in their entirety.

(iii) Operational evaluations submitted by a system must be kept for 10 years following submission.

(9) Any decisions made pursuant to the provisions of part 141, subpart W of this chapter.

(i) Results of source water E. coli and Cryptosporidium monitoring.

(ii) The bin classification after the initial and after the second round of source water monitoring for each filtered system, as described in §141.710 of this chapter.

(iii) Any change in treatment requirements for filtered systems due to watershed assessment during sanitary surveys, as described in §141.711(d) of this chapter.

(iv) The determination of whether the mean Cryptosporidium level is greater than 0.01 oocysts/L after the initial and after the second round of source water monitoring for each unfiltered system, as described in §141.712(a) of this chapter.

(v) The treatment processes or control measures that systems use to meet their Cryptosporidium treatment requirements under §141.711 or §141.712 of this chapter.

(vi) A list of systems required to cover or treat the effluent of an uncovered finished water storage facility, as specified in §141.714 of this chapter.

(10) Records of each of the following decisions made pursuant to the provisions of subpart Y of part 141 must be made in writing and retained by the State.

(i) Records of the following decisions or activities must be retained for five years.

(A) Sections 141.858(a), 141.853(c)(2), 141.856(c), and 141.857(c) of this chapter—Any case-by-case decision to waive the 24-hour time limit for collecting repeat samples after a total coliform-positive routine sample, or to extend the 24-hour limit for collection of samples following invalidation, or for an unfiltered subpart H system of this part to collect a total coliform sample following a turbidity measurement exceeding 1 NTU.

(B) Sections 141.854(j) and 141.855(f) of this chapter—Any decision to allow a system to waive the requirement for three routine samples the month following a total coliform-positive sample. The record of the waiver decision must contain all the items listed in those sections.

(C) Section 141.853(c) of this chapter—Any decision to invalidate a total coliform-positive sample. If the decision to invalidate a total coliform-positive sample as provided in §141.853(c)(1) of this chapter is made, the record of the decision must contain all the items listed in that section.

(D) Section 141.859 of this chapter—Completed and approved subpart Y assessments, including reports from the system that corrective action has been completed as required by §141.861(a)(2) of this chapter.

(ii) Records of each of the following decisions must be retained in such a manner so that each system's current status may be determined:

(A) Section 141.854(e) of this chapter—Any decision to reduce the total coliform monitoring frequency for a non-community water system using only ground water and serving 1,000 or fewer people to less than once per quarter, as provided in §141.854(e) of this chapter, including what the reduced monitoring frequency is. A copy of the reduced monitoring frequency must be provided to the system.

(B) Section 141.855(d) of this chapter—Any decision to reduce the total coliform monitoring frequency for a community water system serving 1,000 or fewer people to less than once per month, as provided in §141.855(d) of this chapter, including what the reduced monitoring frequency is. A copy of the reduced monitoring frequency must be provided to the system.

(C) Section 141.857(d) of this chapter—Any decision to reduce the total coliform monitoring frequency for a non-community water system using only ground water and serving more than 1,000 persons during any month the system serves 1,000 or fewer people, as provided in §141.857(d) of this chapter. A copy of the reduced monitoring frequency must be provided to the system.

(D) Section 141.858(b)(2) of this chapter—Any decision to allow a system to forgo E. coli testing of a total coliform-positive sample if that system assumes that the total coliform-positive sample is E. coli-positive.

(b) Records required to be kept pursuant to paragraph (a) of this section must be in a form admissible as evidence in State enforcement proceedings.

(c) Each State which has primary enforcement responsibility shall maintain current inventory information for every public water system in the State and shall retain inventory records of public water systems for not less than 12 years.

(d) Each State which has primary enforcement responsibility shall retain, for not less than 12 years, files which shall include for each such public water system in the State:

(1) Reports of sanitary surveys;

(2) Records of any State approvals;

(3) Records of any enforcement actions.

(4) A record of the most recent vulnerability determination, including the monitoring results and other data supporting the determination, the State's findings based on the supporting data and any additional bases for such determination; except that it shall be kept in perpetuity or until a more current vulnerability determination has been issued.

(5) A record of all current monitoring requirements and the most recent monitoring frequency decision pertaining to each contaminant, including the monitoring results and other data supporting the decision, the State's findings based on the supporting data and any additional bases for such decision; except that the record shall be kept in perpetuity or until a more recent monitoring frequency decision has been issued.

(6) A record of the most recent asbestos repeat monitoring determination, including the monitoring results and other data supporting the determination, the State's findings based on the supporting data and any additional bases for the determination and the repeat monitoring frequency; except that these records shall be maintained in perpetuity or until a more current repeat monitoring determination has been issued.

(7) Records of annual certifications received from systems pursuant to part 141, subpart K demonstrating the system's compliance with the treatment techniques for acrylamide and/or epichlorohydrin in §14.111.

(8) Records of the currently applicable or most recent State determinations, including all supporting information and an explanation of the technical basis for each decision, made under the following provisions of 40 CFR, part 141, subpart I for the control of lead and copper:

(i) Section 141.81(b)—for any water system deemed to be optimized under §141.81(b)(1) or (b)(3) of this chapter, any conditions imposed by the State on specific water systems to ensure the continued operation and maintenance of corrosion control treatment in place;

(ii) Section 141.82(b)—decisions to require a water system to conduct corrosion control treatment studies;

(iii) Section 141.82(d)—designations of optimal corrosion control treatment;

(iv) Section 141.82(f)—designations of optimal water quality parameters;

(v) Section 141.82(h)—decisions to modify a public water system's optimal corrosion control treatment or water quality parameters;

(vi) Section 141.83(b)(2)—determinations of source water treatment;

(vii) Section 141.83(b)(4)—designations of maximum permissible concentrations of lead and copper in source water;

(viii) Section 141.84(e)—determinations establishing shorter lead service line service line replacement schedules under §141.84;

(ix) Sections 141.81(b)(3)(iii), 141.86(d)(4)(vii), and 141.86(g)(4)(iii)—determinations of additional monitoring requirements and/or other actions required to maintain optimal corrosion control by systems monitoring for lead and copper at the tap less frequently than once every six months that change treatment or add a new source of water;

(x) Section 141.85—system-specific decisions regarding the content of written public education materials and/or the distribution of these materials;

(xi) Section 141.86(b)(5)—system-specific determinations regarding use of non-first-draw samples at non-transient non-community water systems, and community water systems meeting the criteria of §141.85(b)(7)(i) and (ii) of this chapter, that operate 24 hours a day;

(xii) Section 141.86(c)—system-specific designations of sampling locations for systems subject to reduced monitoring;

(xiii) Section 141.86(d)(iv)(A)—system-specific determinations pertaining to alternative sample collection periods for systems subject to reduced monitoring;

(xiv) Section 141.86(g)—determinations of small system monitoring waivers, waiver recertifications, and waiver revocations;

(xv) Section 141.87(c)(3)—determinations regarding representative entry point locations at ground water systems;

(xvi) Section 141.90(e)(4)—system-specific determinations regarding the submission of information to demonstrate compliance with partial lead service line replacement requirements; and

(xvii) Section 141.90(f)—system-specific decisions regarding the resubmission of detailed documentation demonstrating completion of public education requirements.

(9) Records of reports and any other information submitted by PWSs under §141.90 of this chapter, including records of any 90th percentile values calculated by the State under §141.90(h) of this chapter.

(10) Records of State activities, and the results thereof, to:

(i) Verify compliance with State determinations issued under §§141.82(f) of this chapter, 141.82(h) of this chapter, 141.83(b)(2) of this chapter, and 141.83(b)(4) of this chapter;

(ii) Verify compliance with the requirements related to partial lead service line replacement under §141.84(d) of this chapter and compliance with lead service line replacement schedules under §141.84(e) of this chapter; and

(iii) Invalidate tap water lead and copper samples under §141.86(f) of this chapter.

(11) Records of each system's currently applicable or most recently designated monitoring requirements. If, for the records identified in paragraphs (d)(8)(i) through (d)(8)(xvii) of this section, no change is made to State determinations during a 12-year retention period, the State shall retain the record until a new decision, determination, or designation has been issued.

(12) Records of the currently applicable or most recent State determinations, including all supporting information and an explanation of the technical basis for each decision, made under the following provisions of 40 CFR part 141, subpart L for the control of disinfectants and disinfection byproducts. These records must also include interim measures toward installation.

(i) States must keep records of systems that are installing GAC or membrane technology in accordance with §141.64(b)(2) of this chapter. These records must include the date by which the system is required to have completed installation.

(ii) States must keep records of systems that are required, by the State, to meet alternative minimum TOC removal requirements or for whom the State has determined that the source water is not amenable to enhanced coagulation in accordance with §141.135(b)(3) and (4) of this chapter, respectively. These records must include the alternative limits and rationale for establishing the alternative limits.

(iii) States must keep records of subpart H systems using conventional treatment meeting any of the alternative compliance criteria in §141.135(a)(2) or (3) of this chapter.

(iv) States must keep a register of qualified operators that have met the State requirements developed under §142.16(h)(2).

(13) Records of systems with multiple wells considered to be one treatment plant in accordance with §141.132(a)(2) of this chapter and §142.16(h)(5).

(14) Monitoring plans for subpart H systems serving more than 3,300 persons in accordance with §141.132(f) of this chapter.

(15) List of laboratories approved for analyses in accordance with §141.131(b) of this chapter.

(16) List of systems required to monitor for disinfectants and disinfection byproducts in accordance with part 141, subpart L of this chapter. The list must indicate what disinfectants and DBPs, other than chlorine, TTHM, and HAA5, if any, are measured.

(17) Records of the currently applicable or most recent State determination, including all supporting information and an explanation of the technical basis of each decision, made under the following provisions of 40 CFR part 141, subpart S and 40 CFR part 142.

(i) Section 142.16(o)(2)(v). Records of written notices of significant deficiencies.

(ii) Section 141.403(a)(5)(ii) of this chapter. Records of corrective action plans, schedule approvals, and State-specified interim measures.

(iii) Section 142.16(o)(4). Records of confirmations under §141.403(a) of this chapter that a significant deficiency has been corrected or the fecal contamination in the ground water source has been addressed.

(iv) Section 141.402(a)(5) of this chapter. Records of State determinations and records of ground water system's documentation for not conducting triggered source water monitoring.

(v) Section 141.402(d) of this chapter. Records of invalidations of fecal indicator-positive ground water source samples.

(vi) Section 141.402(a)(2)(ii) of this chapter. Records of State approvals of source water monitoring plans.

(vii) Section 142.16(o)(4)(ii). Records of notices of the minimum residual disinfection concentration (when using chemical disinfection) needed to achieve at least 4-log virus inactivation before or at the first customer.

(viii) Sections 142.16(o)(4)(iv) and 142.16(o)(4)(v) Records of notices of the State-specified monitoring and compliance requirements (when using membrane filtration or alternative treatment) needed to achieve at least 4-log treatment of viruses (using inactivation, removal, or a State-approved combination of 4-log inactivation and removal) before or at the first customer.

(ix) Sections 141.403(b)(1) and 141.403(b)(2) of this chapter. Records of written notices from the ground water system that it provides at least 4-log treatment of viruses (using inactivation, removal, or a State-approved combination of 4-log virus inactivation and removal) before or at the first customer for a ground water source.

(x) Section 142.16(o)(4)(vi). Records of written determinations that the ground water system may discontinue 4-log treatment of viruses (using inactivation, removal, or a State-approved combination of 4-log inactivation and removal).

(e) Each State which has primary enforcement responsibility shall retain records pertaining to each variance and exemption granted by it for a period of not less than 5 years following the expiration of such variance or exemption.

(f) Public notification records under subpart Q of part 141 of this chapter received from public water systems (including certifications of compliance and copies of public notices) and any state determinations establishing alternative public notification requirements for the water systems must be retained for three years.

(g) Records required to be kept under this section shall be available to the Regional Administrator upon request. The records required to be kept under this section shall be maintained and made available for public inspection by the State, or, the State at its option may require suppliers of water to make available for public inspection those records maintained in accordance with §141.33.

[41 FR 2918, Jan. 20, 1976]

Editorial Note: For Federal Register citations affecting §142.14, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

§142.15   Reports by States.

Each State which has primary enforcement responsibility shall submit to the Administrator the following information:

(a) Each State which has primary enforcement responsibility shall submit quarterly reports to the Administrator on a schedule and in a format prescribed by the Administrator, consisting of the following information:

(1) New violations by public water systems in the State during the previous quarter of State regulations adopted to incorporate the requirements of national primary drinking water regulations, including violations of the public notification requirements under subpart Q of part 141 of this chapter;

(2) New enforcement actions taken by the State during the previous quarter against public water systems with respect to State regulations adopted to incorporate the requirements of national primary drinking water regulations;

(3) Notification of any new variance or exemption granted during the previous quarter. The notice shall include a statement of reasons for the granting of the variance or exemption, including documentation of the need for the variance or exemption and the finding that the granting of the variance or exemption will not result in an unreasonable risk to health. The State may use a single notification statement to report two or more similar variances or exemptions.

(b) Each State which has primary enforcement responsibility shall submit annual reports to the Administrator on a schedule and in a format prescribed by the Administrator, consisting of the following information:

(1) All additions or corrections to the State's inventory of public water systems;

(2) A summary of the status of each variance and exemption currently in effect.

(c) Special reports—(1) Surface Water Treatment Rule. (i)(A) A list identifying the name, PWS identification number and date of the determination for each public water system supplied by a surface water source or a ground water source under the direct influence of surface water, which the State has determined is not required to provide filtration treatment.

(B) A list identifying the name and PWS identification number of each public water system supplied by a surface water source or ground water source under the direct influence of surface water, which the State has determined, based on an evaluation of site-specific considerations, has no means of having a sample transported and analyzed for HPC by a certified laboratory under the requisite time and temperature conditions specified in §141.74(a)(3) and is providing adequate disinfection in the distribution system, regardless of whether the system is in compliance with the criteria of §141.72 (a)(4)(i) or (b)(3)(i) of this chapter, as allowed by §141.72 (a)(4)(ii) and (b)(3)(ii). The list must include the effective date of each determination.

(ii) Notification within 60 days of the end of the calendar quarter of any determination that a public water system using a surface water source or a ground water source under the direct influence of surface water is not required to provide filtration treatment. The notification must include a statement describing the system's compliance with each requirement of the State's regulations that implement §141.71 and a summary of comments, if any, received from the public on the determination. A single notification may be used to report two or more such determinations.

(2) Total coliforms. A list of public water systems which the State is allowing to monitor less frequently than once per month for community water systems or less frequently than once per quarter for non-community water systems as provided in §141.21(a), including the effective date of the reduced monitoring requirement for each system.

(3) Total coliforms under subpart Y. A list of systems that the State is allowing to monitor less frequently than once per month for community water systems or less frequently than once per quarter for non-community water systems as provided in §§141.855 and 141.854 of this chapter, including the applicable date of the reduced monitoring requirement for each system.

(4) States shall report quarterly, in a format and on a schedule prescribed by the Administrator, the following information related to each system's compliance with the treatment techniques for lead and copper under 40 CFR part 141, subpart I during the preceding calendar quarter. Specifically, States shall report as follows:

(i) For any reports provided prior to May 15, 2000, States shall report the name and PWS identification number:

(A) Each public water system which exceeded the lead and copper action levels and the date upon which the exceedance occurred;

(B) Each public water system required to complete the corrosion control evaluation specified in §141.82(c) and the date the State received the results of the evaluations from each system;

(C) Each public water system for which the State has designated optimal corrosion control treatment under §141.82(d), the date of the determination, and each system that completed installation of treatment as certified under §141.90(c)(3);

(D) Each public water system for which the State has designated optimal water quality parameters under §141.82(f) and the date of the determination;

(E) Each public water system which the State has required to install source water treatment under §141.83(b)(2), the date of the determination, and each system that completed installation of treatment as certified under §141.90(d)(2);

(F) Each public water system for which the State has specified maximum permissible source water levels under §141.83(b)(4); and

(G) Each public water system required to begin replacing lead service lines as specified in §141.84, each public water system for which the State has established a replacement schedule under §141.84(f), and each system reporting compliance with its replacement schedule under §141.90(e)(2).

(ii) For any reports provided after May 14, 2000 and before January 14, 2002, States may report in accordance with either paragraph (c)(4)(i) or (c)(4)(iii) of this section.

(iii) For all reports submitted on or after January 14, 2002, States shall report the PWS identification number of each public water system identified in paragraphs (c)(4)(iii)(A) through (F) of this section.

(A) For each large and medium-size public water system, all 90th percentile lead levels calculated during each monitoring period specified in §141.86 of this chapter, and the first and last day of the monitoring period for which the 90th percentile lead level was calculated;

(B) For each small public water system, the 90th percentile lead level calculated during each monitoring period in which the system exceeds the lead action level, and the first and last day of each monitoring period in which an exceedance occurred;

(C) For each public water system (regardless of size), the 90th percentile copper level calculated during each monitoring period in which the system exceeds the copper action level, and the first and last day of each monitoring period in which an exceedance occurred;

(D) For each public water system for which the State has designated optimal water quality parameters under §141.82(f) of this chapter, or which the State has deemed to have optimized corrosion control under §141.81(b)(1) or (b)(3) of this chapter, the date of the determination and the paragraph(s) under which the State made its determination;

(E) For each public water system required to begin replacing lead service lines as specified in §141.84 of this chapter and the date each system must begin replacement; and

(F) For each public water system that has implemented optimal corrosion control, completed applicable source water treatment requirements pursuant to §141.83 of this chapter and/or completed lead service line replacement requirements pursuant to §141.84 of this chapter, and the date of the State's determination that these requirements have been met. The date reported shall be the latest of the following events:

(1) The date the State designates optimal water quality parameters under §141.82(f) of this chapter or deems the system to have optimized corrosion control pursuant to §141.81(b)(1) or (b)(3) of this chapter;

(2) For systems triggered into source water treatment, the date the State designates maximum permissible source water levels under §141.83(b)(4) of this chapter or determines pursuant to §141.83(b)(2) of this chapter that source water treatment is not required; or

(3) For systems triggered into lead service line replacement, the date the system completes lead service line replacement or becomes eligible to cease lead service line replacement pursuant to §141.84(f) of this chapter.

(5) Sanitary surveys. A list of subpart H systems that have had a sanitary survey completed during the previous year and an annual evaluation of the State's program for conducting sanitary surveys under §142.16(b)(3) of this chapter.

(6) Subpart W. (i) The bin classification after the initial and after the second round of source water monitoring for each filtered system, as described in §141.710 of this chapter.

(ii) Any change in treatment requirements for these systems due to watershed assessment during sanitary surveys, as described in §141.711(d) of this chapter.

(iii) The determination of whether the mean Cryptosporidium level is greater than 0.01 oocysts/L both after the initial and after the second round of source water monitoring for each unfiltered system, as described in §141.712(a) of this chapter.

(7) Ground water rule—(i) Sanitary surveys. The month and year in which the most recent sanitary survey was completed or, for a State that uses a phased review process, the date the last element of the applicable eight elements was evaluated under §142.16(o)(2) for each ground water system.

(ii) Corrective action requirements. For any corrective action under §141.403(a) of this chapter, the date the ground water system completed corrective action.

(iii) Compliance monitoring. All ground water systems providing at least 4-log treatment of viruses (using inactivation, removal, or a State-approved combination of 4-log virus inactivation and removal) before or at the first customer for any ground water source(s).

(d) The reports submitted pursuant to this section shall be made available by the State to the public for inspection at one or more locations within the State.

[41 FR 2918, Jan. 20, 1976]

Editorial Note: For Federal Register citations affecting §142.15, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

§142.16   Special primacy requirements.

(a) State public notification requirements. (1) Each State that has primary enforcement authority under this part must submit complete and final requests for approval of program revisions to adopt the requirements of subpart Q of part 141 of this chapter, using the procedures in §142.12(b) through (d). At its option, a State may, by rule, and after notice and comment, establish alternative public notification requirements with respect to the form and content of the public notice required under subpart Q of part 141 of this chapter. The alternative requirements must provide the same type and amount of information required under subpart Q and must meet the primacy requirements under §142.10.

(2) As part of the revised primacy program, a State must also establish enforceable requirements and procedures when the State adds to or changes the requirements under:

(i) Table 1 to 40 CFR 141.201(a)(Item (3)(v))—To require public water systems to give a public notice for violations or situations other than those listed in appendix A of subpart Q of part 141 of this chapter;

(ii) 40 CFR 141.201(c)(2)—To allow public water systems, under the specific circumstances listed in §141.201(c)(2), to limit the distribution of the public notice to persons served by the portion of the distribution system that is out of compliance;

(iii) Table 1 of 40 CFR 141.202(a) (Items (5), (6), and (9))—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 listed in appendix A of subpart Q of part 141 of this chapter;

(iv) 40 CFR 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 Tier 1 notice, as a result of their consultation with the State required under §§141.202(b)(2);

(v) 40 CFR 141.202(c), 141.203(c) and 141.204(c)—To require a different form and manner of delivery for Tier 1, 2 and 3 public notices.

(vi) Table 1 to 40 CFR 141.203(a) (Item (2))—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;

(vii) 40 CFR 141.203(b)(1)—To grant public water systems an extension up to three months for distributing the Tier 2 public notice in appropriate circumstances (other than those specifically excluded in the rule);

(viii) 40 CFR 141.203(b)(2)—To grant a different repeat notice frequency for the Tier 2 public notice in appropriate circumstances (other than those specifically excluded in the rule), but no less frequently than once per year;

(ix) 40 CFR 141.203(b)(3)—To respond within 24 hours to a request for consultation by the public water system to determine whether a Tier 1 (rather than a Tier 2) notice is required for a turbidity MCL violation under §141.13(b) or a SWTR/IESWTR TT violation due to a single exceedance of the maximum allowable turbidity limit;

(x) 40 CFR 141.205(c)—To determine the specific multilingual requirement for a public water system, including defining “large proportion of non-English-speaking consumers.”

(b) Requirements for States to adopt 40 CFR part 141, subpart H Filtration and Disinfection. In addition to the general primacy requirements enumerated elsewhere in this part, including the requirement that State provisions are no less stringent than the federal requirements, an application for approval of a State program revision that adopts 40 CFR part 141, subpart H Filtration and Disinfection, must contain the information specified in this paragraph (b), except that States which require without exception all public water systems using a surface water source or a ground water source under the direct influence of surface water to provide filtration need not demonstrate that the State program has provisions that apply to systems which do not provide filtration treatment. However, such States must provide the text of the State statutes or regulations which specifies that all public water systems using a surface water source or a ground water source under the direct influence of surface water must provide filtration.

(1) Enforceable requirements. (i) In addition to adopting criteria no less stringent than those specified in part 141, subpart H of this chapter, the State's application must include enforceable design and operating criteria for each filtration treatment technology allowed or a procedure for establishing design and operating conditions on a system-by-system basis (e.g., a permit system).

(ii) States must have the appropriate rules or other authority to assure that PWSs respond in writing to significant deficiencies outlined in sanitary survey reports required under paragraph (b)(3) of this section no later than 45 days after receipt of the report, indicating how and on what schedule the system will address significant deficiencies noted in the survey.

(iii) States must have the appropriate rules or other authority to assure that PWSs take necessary steps to address significant deficiencies identified in sanitary survey reports required under paragraph (b)(3) of this section, if such deficiencies are within the control of the PWS and its governing body.

(2) State practices or procedures. (i) A State application for program revision approval must include a description of how the State will accomplish the following:

(A) Section 141.70(c) (qualification of operators)—Qualify operators of systems using a surface water source or a ground water source under the direct influence of surface water.

(B) Determine which systems using a ground water source are under the direct influence of surface water by June 29, 1994 for community water systems and by June 29, 1999 for non-community water systems.

(C) Section 141.72(b)(1) (achieving required Giardia lamblia and virus removal in filtered systems)—Determine that the combined treatment process incorporating disinfection treatment and filtration treatment will achieve the required removal and/or inactivation of Giardia lamblia and viruses.

(D) Section 141.74(a) (State approval of parties to conduct analyses)—approve parties to conduct pH, temperature, turbidity, and residual disinfectant concentration measurements.

(E) Determine appropriate filtration treatment technology for source waters of various qualities.

(ii) For a State which does not require all public water systems using a surface water source or ground water source under the direct influence of surface water to provide filtration treatment, a State application for program revision approval must include a description of how the State will accomplish the following:

(A) Section 141.71(b)(2) (watershed control program)—Judge the adequacy of watershed control programs.

(B) Section 141.71(b)(3) (approval of on-site inspectors)—Approve on-site inspectors other than State personnel and evaluate the results of on-site inspections.

(iii) For a State which adopts any of the following discretionary elements of part 141 of this chapter, the application must describe how the State will:

(A) Section 141.72 (interim disinfection requirements)—Determine interim disinfection requirements for unfiltered systems which the State has determined must filter which will be in effect until filtration is installed.

(B) Section 141.72 (a)(4)(ii) and (b)(3)(ii) (determination of adequate disinfection in system without disinfectant residual)—Determine that a system is unable to measure HPC but is still providing adequate disinfection in the distribution system, as allowed by §141.72(a)(4)(ii) for systems which do not provide filtration treatment and §141.72(b)(3)(ii) for systems which do provide filtration treatment.

(C) Section 141.73 (a)(1) and (b)(1) (alternative turbidity limit)—Determine whether an alternative turbidity limit is appropriate and what the level should be as allowed by §141.73(a)(1) for a system using conventiona1 filtration treatment or direct filtration and by §141.73(b)(1) for a system using slow sand filtration.

(D) Section 141.73(d) (alternative filtration technologies)—Determine that a public water system has demonstrated that an alternate filtration technology, in combination with disinfection treatment, achieves adequate removal and/or disinfection of Giardia lamblia and viruses.

(E) Section 141.74(a)(5) (alternate analytical method for chlorine)—Approve DPD colorimetric test kits for free and combined chlorine measurement or approve calibration of automated methods by the Indigo Method for ozone determination.

(F) Section 141.74 (b)(2) and (c)(1) (approval of continuous turbidity monitoring)—Approve continuous turbidity monitoring, as allowed by §141.74(b)(2) for a public water system which does not provide filtration treatment and §141.74(c)(1) for a system which does provide filtration treatment.

(G) Section 141.74 (b)(6)(i) and (c)(3)(i) (approval of alternate disinfectant residual concentration sampling plans)—Approve alternate disinfectant residual concentration sampling plans for systems which have a combined ground water and surface water or ground water and ground water under the direct influence of a surface water distribution system, as allowed by §141.74(b)(6)(i) for a public water system which does not provide filtration treatment and §141.74(c)(3)(i) for a public water system which does provide filtration treatment.

(H) Section 141.74(c)(1) (reduction of turbidity monitoring)—Decide whether to allow reduction of turbidity monitoring for systems using slow sand filtration, an approved alternate filtration technology or serving 500 people or fewer.

(I) Section 141.75 (a)(2)(ix) and (b)(2)(iv) (reduced reporting)—Determine whether reduced reporting is appropriate, as allowed by §141.75(a)(2)(ix) for a public water system which does not provide filtration treatment and §141.75(b)(2)(iv) for a public water system which does provide filtration treatment.

(iv) For a State which does not require all public water systems using a surface water source or ground water source under the direct influence of surface water to provide filtration treatment and which uses any of the following discretionary provisions, the application must describe how the State will:

(A) Section 141.71(a)(2)(i) (source water turbidity requirements)—Determine that an exceedance of turbidity limits in source water was caused by circumstances that were unusual and unpredictable.

(B) Section 141.71(b)(1)(i) (monthly CT compliance requirements)—Determine whether failure to meet the requirements for monthly CT compliance in §141.72(a)(1) was caused by circumstances that were unusual and unpredictable.

(C) Section 141.71(b)(1)(iii) (residual disinfectant concentration requirements)—Determine whether failure to meet the requirements for residual disinfectant concentration entering the distribution system in §141.72(a)(3)(i) was caused by circumstances that were unusual and unpredictable.

(D) Section 141.71(b)(1)(iv) (distribution system disinfectant residual concentration requirements)—Determine whether failure to meet the requirements for distribution system residual disinfectant concentration in §141.72(a)(4) was related to a deficiency in treatment.

(E) Section 141.71(b)(4) (system modification to prevent waterborne disease outbreak)—Determine that a system, after having been identified as the source of a waterborne disease outbreak, has been modified sufficiently to prevent another such occurrence.

(F) Section 141.71(b)(5) (total coliform MCL)—Determine whether a total coliform MCL violation was caused by a deficiency in treatment.

(G) Section 141.72(a)(1) (disinfection requirements)—Determine that different ozone, chloramine, or chlorine dioxide CT99.9 values or conditions are adequate to achieve required disinfection.

(H) Section 141.72(a)(2)(ii) (shut-off of water to distribution system)—Determine whether a shut-off of water to the distribution system when the disinfectant residual concentration entering the distribution system is less than 0.2 mg/1 will cause an unreasonable risk to health or interfere with fire protection.

(I) Section 141.74(b)(1) (coliform monitoring)—Determine that coliform monitoring which otherwise might be required is not feasible for a system.

(J) Section 141.74(b), table 3.1 (disinfection with chloramines)—Determine the conditions to be met to insure 99.99 percent removal and/or inactivation of viruses in systems which use either preformed chloramines or chloramines for which ammonia is added to the water before chlorine, as allowed by table 3.1.

(3) Sanitary survey. In addition to the general requirements for sanitary surveys contained in §142.10(b)(2), an application must describe how the State will implement a sanitary survey program that meets the requirements in paragraphs (b)(3)(i) through (v) of this section. For the purposes of this paragraph, “sanitary survey” means an onsite review of the water source (identifying sources of contamination using results of source water assessments where available), facilities, equipment, operation, maintenance, and monitoring compliance of a public water system to evaluate the adequacy of the system, its sources and operations and the distribution of safe drinking water.

(i) The State must conduct sanitary surveys for all surface water systems (including groundwater under the influence) that address the eight sanitary survey components listed in paragraphs (b)(3)(i)(A) through (H) of this section no less frequently than every three years for community systems and no less frequently than every five years for noncommunity systems. The State may allow sanitary surveys conducted after December 1995 to serve as the first set of required sanitary surveys if the surveys address the eight sanitary survey components listed in paragraphs (b)(3)(i)(A) through (H) of this section.

(A) Source.

(B) Treatment.

(C) Distribution system.

(D) Finished water storage.

(E) Pumps, pump facilities, and controls.

(F) Monitoring and reporting and data verification.

(G) System management and operation.

(H) Operator compliance with State requirements.

(ii) For community systems determined by the State to have outstanding performance based on prior sanitary surveys, subsequent sanitary surveys may be conducted no less than every five years. In its primacy application, the State must describe how it will decide whether a system has outstanding performance and is thus eligible for sanitary surveys at a reduced frequency.

(iii) Components of a sanitary survey may be completed as part of a staged or phased state review process within the established frequency.

(iv) When conducting sanitary surveys for systems required to comply with the disinfection profiling requirements in §141.172 of this chapter, the State must also review the disinfection profile as part of the sanitary survey.

(v) In its primacy application, the State must describe how it will decide whether a deficiency identified during a sanitary survey is significant for the purposes of paragraph (b)(1)(ii) of this section.

(c) Total coliform requirements. In addition to meeting the general primacy requirements of this part, an application for approval of a State program revision that adopts the requirements of the national primary drinking water regulation for total coliforms must contain the following information:

(1) The application must describe the State's plan for determining whether sample siting plans are acceptable (including periodic reviews), as required by §141.21(a)(1).

(2) The national primary drinking water regulation for total coliforms in part 141 gives States the option to impose lesser requirements in certain circumstances, which are listed below. If a State chooses to exercise any of these options, its application for approval of a program revision must include the information listed below (the State need only provide the information listed for those options it has chosen to use).

(i) Section 141.21(a)(2) (Reduced monitoring requirements for community water systems serving 1,000 or fewer persons)—A description of how the State will determine whether it is appropriate to reduce the total coliform monitoring frequency for such systems using the criteria in §141.21(a)(2) and how it will determine the revised frequency.

(ii) Section 141.21(a)(3)(i) (Reduced monitoring requirements for non-community water systems using ground water and serving 1,000 persons or fewer)—A description of how the State will determine whether it is appropriate to reduce the total coliform monitoring frequency for such systems using the criteria in §141.21(a)(3)(i) and how it will determine the revised frequency.

(iii) Section 141.21(a)(3)(ii) (Reduced monitoring for non-community water systems using ground water and serving more than 1,000 persons)—A description of how the State will determine whether it is appropriate to reduce the total coliform monitoring frequency for non-community water systems using only ground water and serving more than 1,000 persons during any month the system serves 1,000 persons or fewer and how it will determine the revised frequency.

(iv) Section 141.21(a)(5) (Waiver of time limit for sampling after a turbidity sampling result exceeds 1 NTU)—A description of how the State will determine whether it is appropriate to waive the 24-hour time limit.

(v) Section 141.21(b)(1) (Waiver of time limit for repeat samples)—A description of how the State will determine whether it is appropriate to waive the 24-hour time limit and how it will determine what the revised time limit will be.

(vi) Section 141.21(b)(3) (Alternative repeat monitoring requirements for systems with a single service connection)—A description of how the State will determine whether it is appropriate to allow a system with a single service connection to use an alternative repeat monitoring scheme, as provided in §141.21(b)(3), and what the alternative requirements will be.

(vii) Section 141.21(b)(5) (Waiver of requirement to take five routine samples the month after a system has a total coliform-positive sample)—A description of how the State will determine whether it is appropriate to waive the requirement for certain systems to collect five routine samples during the next month it serves water to the public, using the criteria in §141.21(b)(5).

(viii) Section 141.21(c) (Invalidation of total coliform-positive samples)—A description of how the State will determine whether it is appropriate to invalidate a total coliform-positive sample, using the criteria in §141.21(c).

(ix) Section 141.21(d) (Sanitary surveys)—A description of the State's criteria and procedures for approving agents other than State personnel to conduct sanitary surveys.

(x) Section 141.21(e)(2) (Waiver of fecal coliform or E. coli testing on a total coliform-positive sample)—A description of how the State will determine whether it is appropriate to waive fecal coliform or E. coli testing on a total coliform-positive sample.

(d) Requirements for States to adopt 40 CFR part 141, subpart I—Control of Lead and Copper. An application for approval of a State program revision which adopts the requirements specified in 40 CFR part 141, subpart I, must contain (in addition to the general primacy requirements enumerated elsewhere in this part, including the requirement that State regulations be at least as stringent as the federal requirements) a description of how the State will accomplish the following program requirements:

(1) Section 141.82—State designation of optimal corrosion control.

(i) Sections 141.82(d), 141.82(f), and 141.82(h)—Designating optimal corrosion control treatment methods, optimal water quality parameters, and modifications thereto.

(ii) Section 141.82(g)—Designating an alternative approach for aggregating multiple measurements collected during the same day for a water quality parameter at a sampling location, if the State elects to adopt a formula other than the one specified in §141.82(g)(1) of this chapter.

(2) Sections 141.83(b)(2) and 141.83(b)(4)—Designating source water treatment methods, maximum permissible source water levels for lead and copper and modifications thereto.

(3) Section 141.90(e)—Verifying compliance with lead service line replacement schedules and completion of all partial lead service line replacement activities.

(4) Section 141.86(d)(4)(iv)(A)—Designating an alternative period for sample collection for community water systems subject to reduced monitoring.

(e) An application for approval of a State program revision which adopts the requirements specified in §§141.11, 141.23, 141.24, 141.32, 141.61, and 141.62 for a newly regulated contaminant must contain the following (in addition to the general primacy requirements enumerated elsewhere in this part, including the requirement that State regulations be at least as stringent as the Federal requirements):

(1) If a State chooses to issue waivers from the monitoring requirements in §§141.23 and 141.24, the State shall describe the procedures and criteria which it will use to review waiver applications and issue waiver determinations.

(i) The procedures for each contaminant or class of contaminants shall include a description of:

(A) The waiver application requirements;

(B) The State review process for “use” waivers and for “susceptibility” waivers; and

(C) The State decision criteria, including the factors that will be considered in deciding to grant or deny waivers. The decision criteria must include the factors specified in §§141.24(f)(8) and 141.24(h)(6).

(ii) The State must specify the monitoring data and other documentation required to demonstrate that the contaminant is eligible for a “use” and/or “susceptibility” waiver.

(2) A monitoring plan for the initial monitoring period by which the State will assure all systems complete the required initial monitoring within the regulatory deadlines.

Note: States may update their monitoring plan submitted under the Phase II Rule or simply note in their application that they will use the same monitoring plan for the Phase V Rule.

(i) The initial monitoring plan must describe how systems will be scheduled during the initial monitoring period and demonstrate that the analytical workload on certified laboratories for each of the three years has been taken into account, to assure that the State's plan will result in a high degree of monitoring compliance and that as a result there is a high probability of compliance and will be updated as necessary.

(ii) The State must demonstrate that the initial monitoring plan is enforceable under State law.

(f) Consumer Confidence Report requirements. (1) Each State that has primary enforcement responsibility must adopt the requirements of 40 CFR part 141, subpart O no later than August 21, 2000. States must submit revised programs to EPA for approval using the procedures in §142.12(b) through (d).

(2) Each State that has primary enforcement responsibility must make reports submitted to the States in compliance with 40 CFR 141.155(c) available to the public upon request.

(3) Each State that has primary enforcement responsibility must maintain a copy of the reports for a period of one year and the certifications obtained pursuant to 40 CFR 141.155(c) for a period of 5 years.

(4) Each State that has primary enforcement responsibility must report violations of this subpart in accordance with the requirements of §142.15(a)(1).

(g) Requirements for States to adopt 40 CFR part 141, Subpart P—Enhanced Filtration and Disinfection—Systems Serving 10,000 or More People. In addition to the general primacy requirements enumerated elsewhere in this part, including the requirement that State provisions are no less stringent than the Federal requirements, an application for approval of a State program revision that adopts 40 CFR part 141, Subpart P Enhanced Filtration and Disinfection—Systems Serving 10,000 or More People, must contain the information specified in this paragraph:

(1) Enforceable requirements. States must have the appropriate rules or other authority to require PWSs to conduct a Composite Correction Program (CCP) and to assure that PWSs implement any followup recommendations that result as part of the CCP. The CCP consists of two elements—a Comprehensive Performance Evaluation (CPE) and Comprehensive Technical Assistance (CTA). A CPE is a thorough review and analysis of a plant's performance-based capabilities and associated administrative, operation and maintenance practices. It is conducted to identify factors that may be adversely impacting a plant's capability to achieve compliance and emphasizes approaches that can be implemented without significant capital improvements. A CTA is the performance improvement phase that is implemented if the CPE results indicate improved performance potential. During the CTA phase, the system must identify and systematically address plant-specific factors. The CTA is a combination of utilizing CPE results as a basis for followup, implementing process control priority-setting techniques and maintaining long-term involvement to systematically train staff and administrators.

(2) State practices or procedures. (i) Section 141.172(a)(3) of this chapter—How the State will approve a more representative annual data set than the data set determined under §141.172 (a)(1) or (2) of this chapter for the purpose of determining applicability of the requirements of §141.172 of this chapter.

(ii) Section 141.172(b)(5) of this chapter—How the State will approve a method to calculate the logs of inactivation for viruses for a system that uses either chloramines or ozone for primary disinfection.

(iii) Section 141.172(c) of this chapter—How the State will consult with PWSs to evaluate modifications to disinfection practice.

(iv) Section 141.173(b) of this chapter—For filtration technologies other than conventional filtration treatment, direct filtration, slow sand filtration, or diatomaceous earth filtration, how the State will determine that a public water system may use a filtration technology if the PWS demonstrates to the State, using pilot plant studies or other means, that the alternative filtration technology, in combination with disinfection treatment that meets the requirements of §141.172(b) of this chapter, consistently achieves 99.9 percent removal and/or inactivation of Giardia lamblia cysts and 99.99 percent removal and/or inactivation of viruses, and 99 percent removal of Cryptosporidium oocysts. For a system that makes this demonstration, how the State will set turbidity performance requirements that the system must meet 95 percent of the time and that the system may not exceed at any time at a level that consistently achieves 99.9 percent removal and/or inactivation of Giardia lamblia cysts, 99.99 percent removal and/or inactivation of viruses, and 99 percent removal of Cryptosporidium oocysts.

(h) Requirements for States to adopt 40 CFR part 141, subpart L. In addition to the general primacy requirements elsewhere in this part, including the requirement that State regulations be at least as stringent as federal requirements, an application for approval of a State program revision that adopts 40 CFR part 141, subpart L, must contain a description of how the State will accomplish the following program requirements:

(1) Section 141.64(b)(2) of this chapter (interim treatment requirements). Determine any interim treatment requirements for those systems electing to install GAC or membrane filtration and granted additional time to comply with §141.64 of this chapter.

(2) Section 141.130(c) of this chapter (qualification of operators). Qualify operators of public water systems subject to 40 CFR part 141, subpart L. Qualification requirements established for operators of systems subject to 40 CFR part 141, subpart H—Filtration and Disinfection may be used in whole or in part to establish operator qualification requirements for meeting 40 CFR part 141, subpart L requirements if the State determines that the 40 CFR part 141, subpart H requirements are appropriate and applicable for meeting subpart L requirements.

(3) Section 141.131(c)(2) of this chapter (DPD colorimetric test kits). Approve DPD colorimetric test kits for free and total chlorine measurements. State approval granted under §141.74(a)(2) of this chapter for the use of DPD colorimetric test kits for free chlorine testing is acceptable for the use of DPD test kits in measuring free chlorine residuals as required in 40 CFR part 141, subpart L.

(4) Sections 141.131(c)(3) and (d) of this chapter (State approval of parties to conduct analyses). Approve parties to conduct pH, bromide, alkalinity, and residual disinfectant concentration measurements. The State's process for approving parties performing water quality measurements for systems subject to 40 CFR part 141, subpart H requirements in paragraph (b)(2)(i)(D) of this section may be used for approving parties measuring water quality parameters for systems subject to subpart L requirements, if the State determines the process is appropriate and applicable.

(5) Section 141.132(a)(2) of this chapter (multiple wells as a single source). Define the criteria to use to determine if multiple wells are being drawn from a single aquifer and therefore be considered a single source for compliance with monitoring requirements.

(6) Approve alternate minimum TOC removal (Step 2) requirements, as allowed under the provisions of §141.135(b) of this chapter.

(i) Requirements for States to adopt 40 CFR part 141, §141.76 Recycle provisions. In addition to the general primacy requirements enumerated elsewhere in this part, including the requirement that the State provisions are no less stringent than the federal requirements, an application for approval of a State program revision that adopts 40 CFR part 141, §141.76 Recycle Provisions must contain the information specified in this paragraph:

(1) State practices or procedures. (i) Section 141.76(d) of this chapter—States must have the proper rules and authority to use Sanitary Surveys, comprehensive performance evaluations (CPEs), other inspections, or other activities to evaluate recycle data maintained by systems under §141.76(d) of this chapter and require modifications to recycle practices.

(ii) [Reserved]

(2) [Reserved]

(j) An application for approval of a State program revision which adopts the requirements specified in §§141.11, 141.23, 141.24, 141.32, 141.61 and 141.62 for an existing regulated contaminant must contain the following (in addition to the general primacy requirements enumerated elsewhere in this part, including the requirement that State regulations be at least as stringent as the federal requirements):

(1) If a State chooses to issue waivers from the monitoring requirements in §§141.23 and 141.24, the State shall describe the procedures and criteria, that it will use to review waiver applications and issue waiver determinations. The State shall provide the same information required in paragraph (e)(1)(i) and (ii) of this section. States may update their existing waiver criteria or use the requirements submitted under the National Primary Drinking Water Regulations for the inorganic and organic contaminants (i.e., Phase II/V rule) in 16(e) of this section. States may simply note in their application any revisions to existing waiver criteria or note that the same procedures to issue waivers will be used.

(2) A monitoring plan by which the State will ensure all systems complete the required monitoring by the regulatory deadlines. States may update their existing monitoring plan or use the same monitoring plan submitted under the National Primary Drinking Water Regulations for the inorganic and organic contaminants (i.e., Phase II/V rule) in 16(e) of this section. States may simply note in their application any revisions to an existing monitoring plan or note that the same monitoring plan will be used. The State must demonstrate that the monitoring plan is enforceable under State law.

(k) States establish the initial monitoring requirements for new systems and new sources. States must explain their initial monitoring schedules and how these monitoring schedules ensure that public water systems and sources comply with MCL's and monitoring requirements. States must also specify the time frame in which new systems will demonstrate compliance with the MCLs.

(l) An application for approval of a State program revision for radionuclides which adopts the requirements specified in §141.26(a)(2)(ii)(C) of this chapter must contain the following (in addition to the general primacy requirements enumerated in this part, including that State regulations be at least as stringent as the Federal requirements):

(1) If a State chooses to use grandfathered data in the manner described in §141.26(a)(2)(ii)(C) of this chapter, then the State must describe the procedures and criteria which it will use to make these determinations (whether distribution system or entry point sampling points are used).

(i) The decision criteria that the State will use to determine that data collected in the distribution system are representative of the drinking water supplied from each entry point to the distribution system. These determinations must consider:

(A) All previous monitoring data.

(B) The variation in reported activity levels.

(C) Other factors affecting the representativeness of the data (e.g. geology).

(ii) [Reserved]

(2) A monitoring plan by which the State will assure all systems complete the required monitoring within the regulatory deadlines. States may update their existing monitoring plan or use the same monitoring plan submitted for the requirements in §142.16(e)(2) under the national primary drinking water regulations for the inorganic and organic contaminants (i.e. the phase II/V rules). States may note in their application any revision to an existing monitoring plan or note that the same monitoring plan will be used. The State must demonstrate that the monitoring plan is enforceable under State law.

(m) Requirements for States to adopt 40 CFR part 141, subparts U and V. In addition to the general primacy requirements elsewhere in this part, including the requirements that State regulations be at least as stringent as federal requirements, an application for approval of a State program revision that adopts 40 CFR part 141, subparts U and V, must contain a description of how the State will implement a procedure for addressing modification of wholesale system and consecutive system monitoring on a case-by-case basis for part 141 subpart V outside the provisions of §141.29 of this chapter, if the State elects to use such an authority. The procedure must ensure that all systems have at least one compliance monitoring location.

(n) Requirements for States to adopt 40 CFR part 141, subpart W. In addition to the general primacy requirements elsewhere in this part, including the requirements that State regulations be at least as stringent as Federal requirements, an application for approval of a State program revision that adopts 40 CFR part 141, subpart W, must contain a description of how the State will accomplish the following program requirements where allowed in State programs.

(1) Approve an alternative to the E. coli levels that trigger Cryptosporidium monitoring by filtered systems serving fewer than 10,000 people, as described in §141.701(a)(5).

(2) Assess significant changes in the watershed and source water as part of the sanitary survey process and determine appropriate follow-up action for systems, as described in §141.711(d) of this chapter.

(3) Approve watershed control programs for the 0.5-log treatment credit in the microbial toolbox, as described in §141.716(a) of this chapter.

(4) Approve protocols for demonstration of performance treatment credits in the microbial toolbox, as allowed under §141.718(c) of this chapter.

(5) Approve protocols for alternative ozone and chlorine dioxide CT values in the microbial toolbox, as allowed under §141.720(c) of this chapter.

(6) Approve an alternative approach to UV reactor validation testing in the microbial toolbox, as allowed under §141.720(d)(2)(iii) of this chapter.

(o) Requirements for States to adopt 40 CFR part 141, subpart S. In addition to the general primacy requirements specified elsewhere in this part, including the requirement that State regulations are no less stringent than the Federal requirements, an application for approval of a State program revision that adopts 40 CFR part 141, subpart S, must contain the information specified in this paragraph (o).

(1) Legal authority. The application for primacy must demonstrate the State has:

(i) The authority contained in statute or regulation to ensure that ground water systems conduct source water monitoring under §§141.402(a)(2), 141.402(a)(3) and 141.402(a)(4)(ii)(A) of this chapter.

(ii) The authority contained in statute or regulation to ensure that ground water systems take the appropriate corrective actions including interim measures, if necessary, needed to address significant deficiencies.

(iii) The authority contained in statute or regulation to ensure that ground water systems take the appropriate corrective actions, including interim measures if necessary, to address any source water fecal contamination identified during source water monitoring under §141.402 of this chapter.

(iv) The authority contained in statute or regulation to ensure that ground water systems consult with the State regarding corrective action(s).

(2) State practices or procedures for sanitary surveys. In addition to the general requirements for sanitary surveys contained in §142.10(b)(2), a primacy application must describe how the State will implement a sanitary survey program that meets the requirements of paragraph (o)(2)(i) of this section. A “sanitary survey,” as conducted by the State, includes but is not limited to, an onsite review of the water source(s) (identifying sources of contamination by using results of source water assessments or other relevant information where available), facilities, equipment, operation, maintenance, and monitoring compliance of a public water system to evaluate the adequacy of the system, its sources and operations and the distribution of safe drinking water.

(i) The State must conduct sanitary surveys that address the eight sanitary survey components listed in this section no less frequently than every three years for community water systems, except as provided in paragraph (o)(2)(iii) of this section, and every five years for non-community water systems. The State may conduct more frequent sanitary surveys for any system. The initial sanitary survey for each community water system must be conducted by December 31, 2012, unless the system meets the requirements of paragraph (o)(2)(iii) of this section. The initial sanitary survey for each community water system that meets the requirements of paragraph (o)(2)(iii) of this section and for each non-community water system must be conducted by December 31, 2014. The sanitary survey must include an evaluation of each of the following elements as applicable:

(A) Source,

(B) Treatment,

(C) Distribution system,

(D) Finished water storage,

(E) Pumps, pump facilities, and controls,

(F) Monitoring, reporting, and data verification,

(G) System management and operation, and

(H) Operator compliance with State requirements.

(ii) The State may use a phased review process to meet the requirements of (o)(2)(i) of this section if all the applicable elements of paragraphs (o)(2)(i)(A) through (o)(2)(i)(H) of this section are evaluated within the required interval.

(iii) The State may conduct sanitary surveys once every five years for community water systems if the system either provides at least 4-log treatment of viruses (using inactivation, removal, or a State-approved combination of 4-log inactivation and removal) before or at the first customer for all its ground water sources, or if it has an outstanding performance record, as determined by the State and documented in previous sanitary surveys and has no history of total coliform MCL or monitoring violations under §141.21 of this chapter since the last sanitary survey. In its primacy application, the State must describe how it will determine whether a community water system has an outstanding performance record.

(iv) The State must define and describe in its primacy application at least one specific significant deficiency in each of the eight sanitary survey elements in paragraphs (o)(2)(i)(A) through (o)(2)(i)(H) of this section. Significant deficiencies include, but are not limited to, defects in design, operation, or maintenance, or a failure or malfunction of the sources, treatment, storage, or distribution system that the State determines to be causing, or have potential for causing, the introduction of contamination into the water delivered to consumers.

(v) As a condition of primacy, the State must provide ground water systems with written notice describing any significant deficiencies no later than 30 days after the State identifies the significant deficiency. The notice may specify corrective actions and deadlines for completion of corrective actions. The State may provide the written notice at the time of the sanitary survey.

(3) State practices or procedures for source water microbial monitoring. The State's primacy application must include a description of the following:

(i) The criteria the State will use under §§141.402(a)(2)(i) and 141.402(d)(2) of this chapter for extending the 24-hour time limit for a system to collect a ground water source sample to comply with the source water monitoring requirements.

(ii) The criteria the State will use under §§141.402(a)(5)(i) and 141.402(a)(5)(ii) of this chapter to determine whether the cause of the total coliform-positive sample taken under §141.21(a) of this chapter is directly related to the distribution system.

(iii) The criteria the State will use for determining whether to invalidate a fecal indicator-positive ground water source sample under §141.402(d)(1)(ii) of this chapter.

(iv) The criteria the State will use to allow source water microbial monitoring at a location after treatment under §141.402(e)(1) of this chapter.

(4) State practices or procedures for treatment technique requirements. As a condition of primacy, the State must verify that significant deficiencies or source water fecal contamination have been addressed. The State must verify within 30 days after the ground water system has reported to the State that it has completed corrective action. The State must verify either through written confirmation from the ground water system or a site visit by the State. Written notice from the ground water system under §141.405(a)(2) of this chapter may serve as this verification. The State's primacy application must include the following:

(i) The process the State will use to determine that a ground water system achieves at least a 4-log treatment of viruses (using inactivation, removal, or a combination of inactivation and removal) before or at the first customer for a ground water source for systems that are not subject to the source water monitoring requirements of §141.402(a) of this chapter because the ground water system has informed the State that it provides at least 4-log treatment of viruses.

(ii) The process the State will use to determine the minimum residual disinfectant concentration the system must provide prior to the first customer for systems using chemical disinfection.

(iii) The State-approved alternative technologies that ground water systems may use alone or in combination with other approved technologies to achieve at least 4-log treatment of viruses (using inactivation, removal, or a State-approved combination of 4-log inactivation and removal) before or at the first customer for a ground water source.

(iv) The monitoring and compliance requirements the State will require for ground water systems treating to at least 4-log treatment of viruses (using inactivation, removal, or a State-approved combination of inactivation and removal) before or at the first customer for State-approved alternative treatment technologies.

(v) The monitoring, compliance and membrane integrity testing requirements the State will require to demonstrate virus removal for ground water systems using membrane filtration technologies.

(vi) The criteria, including public health-based considerations and incorporating on-site investigations and source water monitoring results the State will use to determine if a ground water system may discontinue 4-log treatment of viruses (using inactivation, removal, or a State-approved combination of inactivation and removal) before or at the first customer.

(p) Requirements for States to adopt 40 CFR part 141, Subpart T—Enhanced Filtration and Disinfection—Systems Serving Fewer Than 10,000 People. In addition to the general primacy requirements enumerated elsewhere in this part, including the requirement that State provisions are no less stringent than the Federal requirements, an application for approval of a State program revision that adopts 40 CFR part 141, Subpart T—Enhanced Filtration and Disinfection—Systems Serving Fewer than 10,000 People, must contain the information specified in this paragraph:

(1) Enforceable requirements. States must have rules or other authority to require systems to participate in a Comprehensive Technical Assistance (CTA) activity, the performance improvement phase of the Composite Correction Program (CCP). The State must determine whether a CTA must be conducted based on results of a CPE which indicate the potential for improved performance, and a finding by the State that the system is able to receive and implement technical assistance provided through the CTA. A CPE is a thorough review and analysis of a system's performance-based capabilities and associated administrative, operation and maintenance practices. It is conducted to identify factors that may be adversely impacting a plant's capability to achieve compliance. During the CTA phase, the system must identify and systematically address factors limiting performance. The CTA is a combination of utilizing CPE results as a basis for follow-up, implementing process control priority-setting techniques and maintaining long-term involvement to systematically train staff and administrators.

(2) State practices or procedures. (i) Section 141.530-141.536—How the State will approve a more representative data set for optional TTHM and HAA5 monitoring and profiling.

(ii) Section 141.535 of this chapter—How the State will approve a method to calculate the logs of inactivation for viruses for a system that uses either chloramines, ozone, or chlorine dioxide for primary disinfection.

(iii) Section 141.542 of this chapter—How the State will consult with the system and approve significant changes to disinfection practices.

(iv) Section 141.552 of this chapter—For filtration technologies other than conventional filtration treatment, direct filtration, slow sand filtration, or diatomaceous earth filtration, how the State will determine that a public water system may use a filtration technology if the PWS demonstrates to the State, using pilot plant studies or other means, that the alternative filtration technology, in combination with disinfection treatment that meets the requirements of §141.72(b) of this chapter, consistently achieves 99.9 percent removal and/or inactivation of Giardia lamblia cysts and 99.99 percent removal and/or inactivation of viruses, and 99 percent removal of Cryptosporidium oocysts. For a system that makes this demonstration, how the State will set turbidity performance requirements that the system must meet 95 percent of the time and that the system may not exceed at any time at a level that consistently achieves 99.9 percent removal and/or inactivation of Giardia lamblia cysts, 99.99 percent removal and/or inactivation of viruses, and 99 percent removal of Cryptosporidium oocysts.

(q) Requirements for States to adopt 40 CFR part 141 subpart Y—Revised Total Coliform Rule. In addition to the general primacy requirements elsewhere in this part, including the requirements that State regulations be at least as stringent as federal requirements, an application for approval of a State program revision that adopts 40 CFR part 141, subpart Y, must contain the information specified in this paragraph (q).

(1) In their application to EPA for approval to implement the federal requirements, the primacy application must indicate what baseline and reduced monitoring provisions of 40 CFR part 141, subpart Y the State will adopt and must describe how they will implement 40 CFR part 141, subpart Y in these areas so that EPA can be assured that implementation plans meet the minimum requirements of the rule.

(2) The State's application for primacy for subpart Y must include a written description for each provision included in paragraphs (q)(2)(i) through (ix) of this section.

(i) Sample Siting Plans—The frequency and process used to review and revise sample siting plans in accordance with 40 CFR part 141, subpart Y to determine adequacy.

(ii) Reduced Monitoring Criteria—An indication of whether the State will adopt the reduced monitoring provisions of 40 CFR part 141, subpart Y. If the State adopts the reduced monitoring provisions, it must describe the specific types or categories of water systems that will be covered by reduced monitoring and whether the State will use all or a reduced set of the criteria specified in §§141.854(h)(2) and 141.855(d)(1)(iii) of this chapter. For each of the reduced monitoring criteria, the State must describe how the criterion will be evaluated to determine when systems qualify.

(iii) Assessments and Corrective Actions—The process for implementing the new assessment and corrective action phase of the rule, including the elements in paragraphs (q)(2)(iii)(A) through (D) of this section.

(A) Elements of Level 1 and Level 2 assessments. This must include an explanation of how the State will ensure that Level 2 assessments provide a more detailed examination of the system (including the system's monitoring and operational practices) than do Level 1 assessments through the use of more comprehensive investigation and review of available information, additional internal and external resources, and other relevant practices.

(B) Examples of sanitary defects.

(C) Examples of assessment forms or formats.

(D) Methods that systems may use to consult with the State on appropriate corrective actions.

(iv) Invalidation of routine and repeat samples collected under 40 CFR part 141, subpart Y—The criteria and process for invalidating total coliform and E. coli-positive samples under 40 CFR part 141, subpart Y. This description must include criteria to determine if a sample was improperly processed by the laboratory, reflects a domestic or other non-distribution system plumbing problem or reflects circumstances or conditions that do not reflect water quality in the distribution system.

(v) Approval of individuals allowed to conduct Level 2 assessments under 40 CFR part 141, subpart Y—The criteria and process for approval of individuals allowed to conduct Level 2 assessments under 40 CFR part 141, subpart Y.

(vi) Special monitoring evaluation—The procedure for performing special monitoring evaluations during sanitary surveys for ground water systems serving 1,000 or fewer people to determine whether systems are on an appropriate monitoring schedule.

(vii) Seasonal systems—How the State will identify seasonal systems, how the State will determine when systems on less than monthly monitoring must monitor, and what start-up provisions seasonal system must meet under 40 CFR part 141, subpart Y.

(viii) Additional criteria for reduced monitoring—How the State will require systems on reduced monitoring to demonstrate:

(A) Continuous disinfection entering the distribution system and a residual in the distribution system.

(B) Cross connection control.

(C) Other enhancements to water system barriers.

(ix) Criteria for extending the 24-hour period for collecting repeat samples.—Under §§141.858(a) and 141.853(c)(2) of this chapter, criteria for systems to use in lieu of case-by-case decisions to waive the 24-hour time limit for collecting repeat samples after a total coliform-positive routine sample, or to extend the 24-hour limit for collection of samples following invalidation. If the State elects to use only case-by-case waivers, the State does not need to develop and submit criteria.

[54 FR 15188, Apr. 17, 1989]

Editorial Note: For Federal Register citations affecting §142.16, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

§142.17   Review of State programs and procedures for withdrawal of approved primacy programs.

(a)(1) At least annually the Administrator shall review, with respect to each State determined to have primary enforcement responsibility, the compliance of the State with the requirements set forth in 40 CFR part 142, subpart B, and the approved State primacy program. At the time of this review, the State shall notify the Administrator of any State-initiated program changes (i.e., changes other than those to adopt new or revised EPA regulations), and of any transfer of all or part of its program from the approved State agency to any other State agency.

(2) When, on the basis of the Administrator's review or other available information, the Administrator determines that a State no longer meets the requirements set forth in 40 CFR part 142, subpart B, the Administrator shall initiate proceedings to withdraw primacy approval. Among the factors the Administrator intends to consider as relevant to this determination are the following, where appropriate: whether the State has requested and has been granted, or is awaiting EPA's decision on, an extension under §142.12(b)(2) of the deadlines for meeting those requirements; and whether the State is taking corrective actions that may have been required by the Administrator. The Administrator shall notify the State in writing that EPA is initiating primacy withdrawal proceedings and shall summarize in the notice the information available that indicates that the State no longer meets such requirements.

(3) The State notified pursuant to paragraph (a)(2) of this section may, within 30 days of receiving the Administrator's notice, submit to the Administrator evidence demonstrating that the State continues to meet the requirements for primary enforcement responsibility.

(4) After reviewing the submission of the State, if any, made pursuant to paragraph (a)(3) of this section, the Administrator shall make a final determination either that the State no longer meets the requirements of 40 CFR part 142, subpart B, or that the State continues to meet those requirements, and shall notify the State of his or her determination. Any final determination that the State no longer meets the requirements of 40 CFR part 142, subpart B, shall not become effective except as provided in §142.13.

(b) If a State which has primary enforcement responsibility decides to relinquish that authority, it may do so by notifying the Administrator in writing of the State's decision at least 90 days before the effective date of the decision.

[54 FR 52140, Dec. 20, 1989, as amended at 60 FR 33661, June 28, 1995]

§142.18   EPA review of State monitoring determinations.

(a) A Regional Administrator may annul a State monitoring determination for the types of determinations identified in §§141.23(b), 141.23(c), 141.24(f), 141.24(h), and 141.40(n) in accordance with the procedures in paragraph (b) of this section.

(b) When information available to a Regional Administrator, such as the results of an annual review, indicate a State determination fails to apply the standards of the approved State program, he may propose to annul the State monitoring determination by sending the State and the affected PWS a draft Rescission Order. The draft order shall:

(1) Identify the PWS, the State determination, and the provisions at issue;

(2) Explain why the State determination is not in compliance with the State program and must be changed; and

(3) Describe the actions and terms of operation the PWS will be required to implement.

(c) The State and PWS shall have 60 days to comment on the draft Rescission Order.

(d) The Regional Administrator may not issue a Rescission Order to impose conditions less stringent than those imposed by the State.

(e) The Regional Administrator shall also provide an opportunity for comment upon the draft Rescission Order, by

(1) Publishing a notice in a newspaper in general circulation in communities served by the affected system; and

(2) Providing 30 days for public comment on the draft order.

(f) The State shall demonstrate that the determination is reasonable, based on its approved State program.

(g) The Regional Administrator shall decide within 120 days after issuance of the draft Rescission Order to:

(1) Issue the Rescission Order as drafted;

(2) Issue a modified Rescission Order; or

(3) Cancel the Rescission Order.

(h) The Regional Administrator shall set forth the reasons for his decision, including a responsiveness summary addressing significant comments from the State, the PWS and the public.

(i) The Regional Administrator shall send a notice of his final decision to the State, the PWS and all parties who commented upon the draft Rescission Order.

(j) The Rescission Order shall remain in effect until cancelled by the Regional Administrator. The Regional Administrator may cancel a Rescission Order at any time, so long as he notifies those who commented on the draft order.

(k) The Regional Administrator may not delegate the signature authority for a final Rescission Order or the cancellation of an order.

(l) Violation of the actions, or terms of operation, required by a Rescission Order is a violation of the Safe Drinking Water Act.

[56 FR 3595, Jan. 30, 1991]

§142.19   EPA review of State implementation of national primary drinking water regulations for lead and copper.

(a) Pursuant to the procedures in this section, the Regional Administrator may review state determinations establishing corrosion control or source water treatment requirements for lead or copper and may issue an order establishing federal treatment requirements for a public water system pursuant to §141.82 (d) and (f) and §141.83(b) (2) and (4) where the Regional Administrator finds that:

(1) A State has failed to issue a treatment determination by the applicable deadline;

(2) A State has abused its discretion in making corrosion control or source water treatment determinations in a substantial number of cases or in cases affecting a substantial population, or

(3) The technical aspects of State's determination would be indefensible in an expected federal enforcement action taken against a system.

(b) If the Regional Administrator determines that review of state determination(s) under this section may be appropriate, he shall request the State to forward to EPA the state determination and all information that was considered by the State in making its determination, including public comments, if any, within 60 days of the Regional Adminstrator's request.

(c) Proposed review of state determinations:

(1) Where the Regional Administrator finds that review of a state determination under paragraph (a) of this section is appropriate, he shall issue a proposed review order which shall:

(i) Identify the public water system(s) affected, the State determination being reviewed and the provisions of state and/or federal law at issue;

(ii) Identify the determination that the State failed to carry out by the applicable deadline, or identify the particular provisions of the State determination which, in the Regional Administrator's judgment, fail to carry out properly applicable treatment requirements, and explain the basis for the Regional Administrator's conclusion;

(iii) Identify the treatment requirements which the Regional Administrator proposes to apply to the affected system(s), and explain the basis for the proposed requirements;

(iv) Request public comment on the proposed order and the supporting record.

(2) The Regional Administrator shall provide notice of the proposed review order by:

(i) Mailing the proposed order to the affected public water system(s), the state agency whose order is being reviewed, and any other parties of interest known to the Regional Administrator; and

(ii) Publishing a copy of the proposed order in a newspaper of general circulation in the affected communities.

(3) The Regional Administrator shall make available for public inspection during the comment period the record supporting the proposed order, which shall include all of the information submitted by the State to EPA under paragraph (b) of this section, all other studies, monitoring data and other information considered by the Agency in developing the proposed order.

(d) Final review order:

(1) Based upon review of all information obtained regarding the proposed review order, including public comments, the Regional Administrator shall issue a final review order within 120 days after issuance of the proposed order which affirms, modifies, or withdraws the proposed order. The Regional Administrator may extend the time period for issuing the final order for good cause. If the final order modifies or withdraws the proposed order, the final order shall explain the reasons supporting the change.

(2) The record of the final order shall consist of the record supporting the proposed order, all public comments, all other information considered by the Regional Administrator in issuing the final order and a document responding to all significant public comments submitted on the proposed order. If new points are raised or new material supplied during the public comment period, the Regional Administrator may support the responses on those matters by adding new materials to the record. The record shall be complete when the final order is issued.

(3) Notice of the final order shall be provided by mailing the final order to the affected system(s), the State, and all parties who commented on the proposed order.

(4) Upon issuance of the final order, its terms constitute requirements of the national primary drinking water regulation for lead and/or copper until such time as the Regional Administrator issues a new order (which may include recision of the previous order) pursuant to the procedures in this section. Such requirements shall supersede any inconsistent treatment requirements established by the State pursuant to the national primary drinking water regulations for lead and copper.

(5) The Regional Administrator may not issue a final order to impose conditions less stringent than those imposed by the State.

(e) The Regional Administrator may not delegate authority to sign the final order under this section.

(f) Final action of the Regional Administrator under paragraph (d) of this section shall constitute action of the Administrator for purposes of 42 U.S.C. §300j-7(a)(2).

[56 FR 26563, June 7, 1991]

Subpart C—Review of State-Issued Variances and Exemptions

§142.20   State-issued variances and exemptions under Section 1415(a) and Section 1416 of the Act.

(a) States with primary enforcement responsibility may issue variances to public water systems (other than small system variances) from the requirements of primary drinking water regulations under conditions and in a manner which are not less stringent than the requirements under Section 1415(a) of the Act. In States that do not have primary enforcement responsibility, variances may be granted by the Administrator pursuant to Subpart E of this part.

(1) A State must document all findings that are required under Section 1415(a) of the Act.

(2) If a State prescribes a schedule pursuant to section 1415(a) of the Act requiring compliance with a contaminant level for which the variance is granted later than five years from the date of issuance of the variance the State must—

(i) Document its rationale for the extended compliance schedule;

(ii) Discuss the rationale for the extended compliance schedule in the required public notice and opportunity for public hearing; and

(iii) Provide the shortest practicable time schedule feasible under the circumstances.

(b) States with primary enforcement responsibility may issue exemptions from the requirements of primary drinking water regulations under conditions and in a manner which are not less stringent than the requirements under Section 1416 of the Act. In States that do not have primary enforcement responsibility, exemptions may be granted by the Administrator pursuant to Subpart F of this part.

(1) A State must document all findings that are required under Section 1416 of the Act:

(i) Before finding that management and restructuring changes cannot be made, a State must consider the following measures, and the availability of State Revolving Loan Fund assistance, or any other Federal or State program, that is reasonably likely to be available within the period of the exemption to implement these measures:

(A) Consideration of rate increases, accounting changes, the appointment of a State-certified operator under the State's Operator Certification program, contractual agreements for joint operation with one or more public water systems;

(B) Activities consistent with the State's Capacity Development Strategy to help the public water system acquire and maintain technical, financial, and managerial capacity to come into compliance with the Act; and

(C) Ownership changes, physical consolidation with another public water system, or other feasible and appropriate means of consolidation which would result in compliance with the Act;

(ii) The State must consider the availability of an alternative source of water, including the feasibility of partnerships with neighboring public water systems, as identified by the public water system or by the State consistent with the Capacity Development Strategy.

(2) In the case of a public water system serving a population of not more than 3,300 persons and which needs financial assistance for the necessary improvements under the initial compliance schedule, an exemption granted by the State under section 1416(b)(2)(B)(i) or (ii) of the Act may be renewed for one or more additional 2-year periods, but not to exceed a total of 6 additional years, only if the State establishes that the public water system is taking all practicable steps to meet the requirements of Section 1416(b)(2)(B) of the Act and the established compliance schedule to achieve full compliance with the contaminant level or treatment technique for which the exemption was granted. A State must document its findings in granting an extension under this paragraph.

[63 FR 43847, Aug. 14, 1998]

§142.21   State consideration of a variance or exemption request.

A State with primary enforcement responsibility shall act on any variance or exemption request submitted to it, within 90 days of receipt of the request.

§142.22   Review of State variances, exemptions and schedules.

(a) Not later than 18 months after the effective date of the interim national primary drinking water regulations the Administrator shall complete a comprehensive review of the variances and exemptions granted (and schedules prescribed pursuant thereto) by the States with primary enforcement responsibility during the one-year period beginning on such effective date. The Administrator shall conduct such subsequent reviews of exemptions and schedules as he deems necessary to carry out the purposes of this title, but at least one review shall be completed within each 3-year period following the completion of the first review under this paragraph.

(b) Notice of a proposed review shall be published in the Federal Register. Such notice shall (1) provide information respecting the location of data and other information respecting the variances and exemptions to be reviewed (including data and other information concerning new scientific matters bearing on such variances and exemptions), and (2) advise of the opportunity to submit comments on the variances and exemptions reviewed and on the need for continuing them. Upon completion of any such review, the Administrator shall publish in the Federal Register the results of his review, together with findings responsive to any comments submitted in connection with such review.

§142.23   Notice to State.

(a) If the Administrator finds that a State has, in a substantial number of instances, abused its discretion in granting variances or exemptions under section 1415(a) or section 1416(a) of the Act or failed to prescribe schedules in accordance with section 1415(a) or section 1416(b) of the Act, he shall notify the State of his findings. Such notice shall:

(1) Identify each public water system for which the finding was made;

(2) Specify the reasons for the finding; and

(3) As appropriate, propose revocation of specific variances or exemptions, or propose revised schedules for specific public water systems.

(b) The Administrator shall also notify the State of a public hearing to be held on the provisions of the notice required by paragraph (a) of this section. Such notice shall specify the time and location for the hearing. If, upon notification of a finding by the Administrator, the State takes adequate corrective action, the Administrator shall rescind his notice to the State of a public hearing, provided that the Administrator is notified of the corrective action prior to the hearing.

(c) The Administrator shall publish notice of the public hearing in the Federal Register and in a newspaper or newspapers of general circulation in the involved State including a summary of the findings made pursuant to paragraph (a) of this section, a statement of the time and location for the hearing, and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing.

(d) Hearings convened pursuant to paragraphs (b) and (c) of this section shall be conducted before a hearing officer to be designated by the Administrator. The hearing shall be conducted by the hearing officer in an informal, orderly and expeditious manner. The hearing officer shall have authority to call witnesses, receive oral and written testimony and take such other action as may be necessary to assure the fair and efficient conduct of the hearing. Following the conclusion of the hearing, the hearing officer shall forward the record of the hearing to the Administrator.

(e) Within 180 days after the date notice is given pursuant to paragraph (b) of this section, the Administrator shall:

(1) Rescind the finding for which the notice was given and promptly notify the State of such rescission, or

(2) Promulgate with any modifications as appropriate such revocation and revised schedules proposed in such notice and promptly notify the State of such action.

(f) A revocation or revised schedule shall take effect 90 days after the State is notified under paragraph (e)(2) of this section.

§142.24   Administrator's rescission.

If, upon notification of a finding by the Administrator under §142.23, the State takes adequate corrective action before the effective date of the revocation or revised schedule, the Administrator shall rescind the application of his finding to that variance, exemption or schedule.

Subpart D—Federal Enforcement

§142.30   Failure by State to assure enforcement.

(a) The Administrator shall notify a State and the appropriate supplier of water whenever he finds during a period in which the State has primary enforcement responsibility for public water systems that a public water system within such State is not in compliance with any primary drinking water regulation contained in part 141 of this chapter or with any schedule or other requirements imposed pursuant to a variance or exemption granted under section 1415 or 1416 of the Act: Provided, That the State will be deemed to have been notified of a violation referred to in a report submitted by the State.

(b) The Administrator shall provide advice and technical assistance to such State and public water system as may be appropriate to bring the system into compliance by the earliest feasible time.

[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]

§142.31   [Reserved]

§142.32   Petition for public hearing.

(a) If the Administrator makes a finding of noncompliance pursuant to §142.30 with respect to a public water system in a State which has primary enforcement responsibility, the Administrator may, for the purpose of assisting that State in carrying out such responsibility and upon the petition of such State or public water system or persons served by such system, hold, after appropriate notice, public hearings for the purpose of gathering information as described in §142.33.

(b) A petition for a public hearing pursuant to paragraph (a) of this section shall be filed with the Administrator and shall include the following information:

(1) The name, address and telephone number of the individual or other entity requesting a hearing.

(2) If the petition is filed by a person other than the State or public water system, a statement that the person is served by the system.

(3) A brief statement of information that the requesting person intends to submit at the requested hearing.

(4) The signature of the individual submitting the petition; or, if the petition is filed on behalf of a State, public water system or other entity, the signature of a responsible official of the State or other entity.

§142.33   Public hearing.

(a) If the Administrator grants the petition for public hearing, he shall give appropriate public notice of such hearing. Such notice shall be by publication in the Federal Register and in a newspaper of general circulation or by other appropriate communications media covering the area served by such public water system.

(b) A hearing officer designated by the Administrator shall gather during the public hearing information from technical or other experts, Federal, State, or other public officials, representatives of the public water system, persons served by the system, and other interested persons on:

(1) The ways in which the system can within the earliest feasible time be brought into compliance, and

(2) The means for the maximum feasible protection of the public health during any period in which such system is not in compliance.

(c) On the basis of the hearing and other available information the Administrator shall issue recommendations which shall be sent to the State and public water system and shall be made available to the public and communications media.

§142.34   Entry and inspection of public water systems.

(a) Any supplier of water or other person subject to a national primary drinking water regulation shall, at any time, allow the Administrator, or a designated representative of the Administrator, upon presenting appropriate credentials and a written notice of inspection, to enter any establishment, facility or other property of such supplier or other person to determine whether such supplier or other person has acted or is acting in compliance with the requirements of the Act or subchapter D of this chapter. Such inspection may include inspection, at reasonable times, of records, files, papers, processes, controls and facilities, or testing of any feature of a public water system, including its raw water source.

(b) Prior to entry into any establishment, facility or other property within a State which has primary enforcement responsibility, the Administrator shall notify, in writing, the State agency charged with responsibility for safe drinking water of his intention to make such entry and shall include in his notification a statement of reasons for such entry. The Administrator shall, upon a showing by the State agency that such an entry will be detrimental to the administration of the State's program of primary enforcement responsibility, take such showing into consideration in determining whether to make such entry. The Administrator shall in any event offer the State agency the opportunity of having a representative accompany the Administrator or his representative on such entry.

(c) No State agency which receives notice under paragraph (b) of this section may use the information contained in the notice to inform the person whose property is proposed to be entered of the proposed entry; if a State so uses such information, notice to the agency under paragraph (b) of this section is not required for subsequent inspections of public water systems until such time as the Administrator determines that the agency has provided him satisfactory assurances that it will no longer so use information contained in a notice received under paragraph (b) of this section.

Subpart E—Variances Issued by the Administrator Under Section 1415(a) of the Act

§142.40   Requirements for a variance.

(a) The Administrator may grant one or more variances to any public water system within a State that does not have primary enforcement responsibility from any requirement respecting a maximum contaminant level of an applicable national primary drinking water regulation upon a finding that:

(1) Because of characteristics of the raw water sources which are reasonably available to the system, the system cannot meet the requirements respecting the maximum contaminant levels of such drinking water regulations despite application of the best technology, treatment techniques, or other means, which the Administrator finds are generally available (taking costs into consideration); and

(2) The granting of a variance will not result in an unreasonable risk to the health of persons served by the system.

(b) The Administrator may grant one or more variances to any public water system within a State that does not have primary enforcement responsibility from any requirement of a specified treatment technique of an applicable national primary drinking water regulation upon a finding that the public water system applying for the variance has demonstrated that such treatment technique is not necessary to protect the health of persons because of the nature of the raw water source of such system.

§142.41   Variance request.

A supplier of water may request the granting of a variance pursuant to this subpart for a public water system within a State that does not have primary enforcement responsibility by submitting a request for a variance in writing to the Administrator. Suppliers of water may submit a joint request for variances when they seek similar variances under similar circumstances. Any written request for a variance or variances shall include the following information:

(a) The nature and duration of variance requested.

(b) Relevant analytical results of water quality sampling of the system, including results of relevant tests conducted pursuant to the requirements of the national primary drinking water regulations.

(c) For any request made under §142.40(a):

(1) Explanation in full and evidence of the best available treatment technology and techniques.

(2) Economic and legal factors relevant to ability to comply.

(3) Analytical results of raw water quality relevant to the variance request.

(4) A proposed compliance schedule, including the date each step toward compliance will be achieved. Such schedule shall include as a minimum the following dates:

(i) Date by which arrangement for alternative raw water source or improvement of existing raw water source will be completed.

(ii) Date of initiation of the connection of the alternative raw water source or improvement of existing raw water source.

(iii) Date by which final compliance is to be achieved.

(5) A plan for the provision of safe drinking water in the case of an excessive rise in the contaminant level for which the variance is requested.

(6) A plan for additional interim control measures during the effective period of variance.

(d) For any request made under §142.40(b), a statement that the system will perform monitoring and other reasonable requirements prescribed by the Administrator as a condition to the variance.

(e) Other information, if any, believed to be pertinent by the applicant.

(f) Such other information as the Administrator may require.

[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]

§142.42   Consideration of a variance request.

(a) The Administrator shall act on any variance request submitted pursuant to §142.41 within 90 days of receipt of the request.

(b) In his consideration of whether the public water system is unable to comply with a contaminant level required by the national primary drinking water regulations because of the nature of the raw water source, the Administrator shall consider such factors as the following:

(1) The availability and effectiveness of treatment methods for the contaminant for which the variance is requested.

(2) Cost and other economic considerations such as implementing treatment, improving the quality of the source water or using an alternate source.

(c) A variance may be issued to a public water system on the condition that the public water system install the best technology, treatment techniques, or other means, which the Administrator finds are available (taking costs into consideration) and based upon an evaluation satisfactory to the Administrator that indicates that alternative sources of water are not reasonably available to the public water system.

(d) In his consideration of whether a public water system should be granted a variance to a required treatment technique because such treatment is unnecessary to protect the public health, the Administrator shall consider such factors as the following:

(1) Quality of the water source including water quality data and pertinent sources of pollution.

(2) Source protection measures employed by the public water system.

[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987; 63 FR 43847, Aug. 14, 1998]

§142.43   Disposition of a variance request.

(a) If the Administrator decides to deny the application for a variance, he shall notify the applicant of his intention to issue a denial. Such notice shall include a statement of reasons for the proposed denial, and shall offer the applicant an opportunity to present, within 30 days of receipt of the notice, additional information or argument to the Administrator. The Administrator shall make a final determination on the request within 30 days after receiving any such additional information or argument. If no additional information or argument is submitted by the applicant the application shall be denied.

(b) If the Administrator proposes to grant a variance request submitted pursuant to §142.41, he shall notify the applicant of his decision in writing. Such notice shall identify the variance, the facility covered, and shall specify the period of time for which the variance will be effective.

(1) For the type of variance specified in §142.40(a) such notice shall provide that the variance will be terminated when the system comes into compliance with the applicable regulation, and may be terminated upon a finding by the Administrator that the system has failed to comply with any requirements of a final schedule issued pursuant to §142.44.

(2) For the type of variance specified in §142.40(b) such notice shall provide that the variance may be terminated at any time upon a finding that the nature of the raw water source is such that the specified treatment technique for which the variance was granted is necessary to protect the health of persons or upon a finding that the public water system has failed to comply with monitoring and other requirements prescribed by the Administrator as a condition to the granting of the variance.

(c) For a variance specified in §142.40(a)(1) the Administrator shall propose a schedule for:

(1) Compliance (including increments of progress) by the public water system with each contaminant level requirement covered by the variance; and,

(2) Implementation by the public water system of such additional control measures as the Administrator may require for each contaminant covered by the variance.

(d) The proposed schedule for compliance shall specify dates by which steps towards compliance are to be taken, including at the minimum, where applicable:

(1) Date by which arrangement for an alternative raw water source or improvement of existing raw water source will be completed.

(2) Date of initiation of the connection for the alternative raw water source or improvement of the existing raw water source.

(3) Date by which final compliance is to be achieved.

(e) The proposed schedule may, if the public water system has no access to an alternative raw water source, and can effect or anticipate no adequate improvement of the existing raw water source, specify an indefinite time period for compliance until a new and effective treatment technology is developed at which time a new compliance schedule shall be prescribed by the Administrator.

(f) The proposed schedule for implementation of additional interim control measures during the period of variance shall specify interim treatment techniques, methods and equipment, and dates by which steps toward meeting the additional interim control measures are to be met.

(g) The schedule shall be prescribed by the Administrator at the time of granting of the variance, subsequent to provision of opportunity for hearing pursuant to §142.44.

[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]

§142.44   Public hearings on variances and schedules.

(a) Before a variance and schedule proposed by the Administrator pursuant to §142.43 may take effect, the Administrator shall provide notice and opportunity for public hearing on the variance and schedule. A notice given pursuant to the preceding sentence may cover the granting of more than one variance and a hearing held pursuant to such notice shall include each of the variances covered by the notice.

(b) Public notice of an opportunity for hearing on a variance and schedule shall be circulated in a manner designed to inform interested and potentially interested persons of the proposed variance and schedule, and shall include at least the following:

(1) Posting of a notice in the principal post office of each municipality or area served by the public water system, and publishing of a notice in a newspaper or newspapers of general circulation in the area served by the public water system; and

(2) Mailing of a notice to the agency of the State in which the system is located which is responsible for the State's water supply program, and to other appropriate State or local agencies at the Administrator's discretion.

(3) Such notice shall include a summary of the proposed variance and schedule and shall inform interested persons that they may request a public hearing on the proposed variance and schedule.

(c) Requests for hearing may be submitted by any interested person other than a Federal agency. Frivolous or insubstantial requests for hearing may be denied by the Administrator. Requests must be submitted to the Administrator within 30 days after issuance of the public notices provided for in paragraph (b) of this section. Such requests shall include the following information:

(1) The name, address and telephone number of the individual, organization or other entity requesting a hearing;

(2) A brief statement of the interest of the person making the request in the proposed variance and schedule, and of information that the requester intends to submit at such hearing;

(3) The signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.

(d) The Administrator shall give notice in the manner set forth in paragraph (b) of this section of any hearing to be held pursuant to a request submitted by an interested person or on his own motion. Notice of the hearing shall also be sent to the persons requesting the hearing, if any. Notice of the hearing shall include a statement of the purpose of the hearing, information regarding the time and location for the hearing, and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing. At least one hearing location specified in the public notice shall be within the involved State. Notice of hearing shall be given not less than 15 days prior to the time scheduled for the hearing.

(e) A hearing convened pursuant to paragraph (d) of this section shall be conducted before a hearing officer to be designated by the Administrator. The hearing shall be conducted by the hearing officer in an informal, orderly and expeditious manner. The hearing officer shall have authority to call witnesses, receive oral and written testimony and take such other action as may be necessary to assure the fair and efficient conduct of the hearing. Following the conclusion of the hearing, the hearing officer shall forward the record of the hearing to the Administrator.

(f) The variance and schedule shall become effective 30 days after notice of opportunity for hearing is given pursuant to paragraph (b) of this section if no timely request for hearing is submitted and the Administrator does not determine to hold a public hearing on his own motion.

[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]

§142.45   Action after hearing.

Within 30 days after the termination of the public hearing held pursuant to §142.44, the Administrator shall, taking into consideration information obtained during such hearing and relevant information, confirm, revise or rescind the proposed variance and schedule.

[52 FR 20675, June 2, 1987]

§142.46   Alternative treatment techniques.

The Administrator may grant a variance from any treatment technique requirement of a national primary drinking water regulation to a supplier of water, whether or not the public water system for which the variance is requested is located in a State which has primary enforcement responsibility, upon a showing from any person that an alternative treatment technique not included in such requirement is at least as efficient in lowering the level of the contaminant with respect to which such requirements was prescribed. A variance under this paragraph shall be conditioned on the use of the alternative treatment technique which is the basis of the variance.

Subpart F—Exemptions Issued by the Administrator

§142.50   Requirements for an exemption.

(a) The Administrator may exempt any public water system within a State that does not have primary enforcement responsibility from any requirement regarding a maximum contaminant level or any treatment technique requirement, or from both, of an applicable national primary drinking water regulation upon a finding that—

(1) Due to compelling factors (which may include economic factors, including qualification of the public water system as a system serving a disadvantaged community pursuant to section 1452(d) of the Act), the public water system is unable to comply with such contaminant level or treatment technique requirement or to implement measures to develop an alternative source of water supply;

(2) The public water system was in operation on the effective date of such contaminant level or treatment technique requirement, or for a public water system that was not in operation by that date, no reasonable alternative source of drinking water is available to such new public water system;

(3) The granting of the exemption will not result in an unreasonable risk to health; and

(4) Management or restructuring changes (or both), as provided in §142.20(b)(1)(i), cannot reasonably be made that will result in compliance with the applicable national primary drinking water regulation or, if compliance cannot be achieved, improve the quality of the drinking water.

(b) No exemption shall be granted unless the public water system establishes that the public water system is taking all practicable steps to meet the standard; and

(1) The public water system cannot meet the standard without capital improvements which cannot be completed prior to the date established pursuant to Section 1412(b)(10) of the Act;

(2) In the case of a public water system which needs financial assistance for the necessary improvements, the public water system has entered into an agreement to obtain such financial assistance or assistance pursuant to Section 1452 of the Act, or any other Federal or State program that is reasonably likely to be available within the period of the exemption; or

(3) The public water system has entered into an enforceable agreement to become a part of a regional public water system.

(c) A public water system may not receive an exemption under this subpart if the public water system was granted a variance under Section 1415(e) of the Act.

[63 FR 43847, Aug. 14, 1998]

§142.51   Exemption request.

A supplier of water may request the granting of an exemption pursuant to this subpart for a public water system within a State that does not have primary enforcement responsibility by submitting a request for exemption in writing to the Administrator. Suppliers of water may submit a joint request for exemptions when they seek similar exemptions under similar circumstances. Any written request for an exemption or exemptions shall include the following information:

(a) The nature and duration of exemption requested.

(b) Relevant analytical results of water quality sampling of the system, including results of relevant tests conducted pursuant to the requirements of the national primary drinking water regulations.

(c) Explanation of the compelling factors such as time or economic factors which prevent such system from achieving compliance.

(d) Other information, if any, believed by the applicant to be pertinent to the application.

(e) A proposed compliance schedule, including the date when each step toward compliance will be achieved.

(f) Such other information as the Administrator may require.

§142.52   Consideration of an exemption request.

(a) The Administrator shall act on any exemption request submitted pursuant to §142.51 within 90 days of receipt of the request.

(b) In his consideration of whether the public water system is unable to comply due to compelling factors, the Administrator shall consider such factors as the following:

(1) Construction, installation, or modification of the treatment equipment or systems.

(2) The time needed to put into operation a new treatment facility to replace an existing system which is not in compliance.

(3) Economic feasibility of compliance.

§142.53   Disposition of an exemption request.

(a) If the Administrator decides to deny the application for an exemption, he shall notify the applicant of his intention to issue a denial. Such notice shall include a statement of reasons for the proposed denial, and shall offer the applicant an opportunity to present, within 30 days of receipt of the notice, additional information or argument to the Administrator. The Administrator shall make a final determination on the request within 30 days after receiving any such additional information or argument. If no additional information or argument is submitted by the applicant, the application shall be denied.

(b) If the Administrator grants an exemption request submitted pursuant to §142.51, he shall notify the applicant of his decision in writing. Such notice shall identify the facility covered, and shall specify the termination date of the exemption. Such notice shall provide that the exemption will be terminated when the system comes into compliance with the applicable regulation, and may be terminated upon a finding by the Administrator that the system has failed to comply with any requirements of a final schedule issued pursuant to §142.55.

(c) The Administrator shall propose a schedule for:

(1) Compliance (including increments of progress or measures to develop an alternative source of water supply) by the public water system with each contaminant level requirement or treatment technique requirement with respect to which the exemption was granted; and

(2) Implementation by the public water system of such control measures as the Administrator may require for each contaminant covered by the exemption.

(d) The schedule shall be prescribed by the Administrator at the time the exemption is granted, subsequent to provision of opportunity for hearing pursuant to §142.54.

[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987; 63 FR 43848, Aug. 14, 1998]

§142.54   Public hearings on exemption schedules.

(a) Before a schedule proposed by the Administrator pursuant to §142.53 may take effect, the Administrator shall provide notice and opportunity for public hearing on the schedule. A notice given pursuant to the preceding sentence may cover the proposal of more than one such schedule and a hearing held pursuant to such notice shall include each of the schedules covered by the notice.

(b) Public notice of an opportunity for hearing on an exemption schedule shall be circulated in a manner designed to inform interested and potentially interested persons of the proposed schedule, and shall include at least the following:

(1) Posting of a notice in the principal post office of each municipality or area served by the public water system, and publishing of a notice in a newspaper or newspapers of general circulation in the area served by the public water system.

(2) Mailing of a notice to the agency of the State in which the system is located which is responsible for the State's water supply program and to other appropriate State or local agencies at the Administrator's discretion.

(3) Such notices shall include a summary of the proposed schedule and shall inform interested persons that they may request a public hearing on the proposed schedule.

(c) Requests for hearing may be submitted by any interested person other than a Federal agency. Frivolous or insubstantial requests for hearing may be denied by the Administrator. Requests must be submitted to the Administrator within 30 days after issuance of the public notices provided for in paragraph (b) of this section. Such requests shall include the following information:

(1) The name, address and telephone number of the individual, organization or other entity requesting a hearing;

(2) A brief statement of the interest of the person making the request in the proposed schedule and of information that the requesting person intends to submit at such hearing; and

(3) The signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.

(d) The Administrator shall give notice in the manner set forth in paragraph (b) of this section of any hearing to be held pursuant to a request submitted by an interested person or on his own motion. Notice of the hearing shall also be sent to the person requesting the hearing, if any. Notice of the hearing shall include a statement of the purpose of the hearing, information regarding the time and location of the hearing, and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing. At least one hearing location specified in the public notice shall be within the involved State. Notice of the hearing shall be given not less than 15 days prior to the time scheduled for the hearing.

(e) A hearing convened pursuant to paragraph (d) of this section shall be conducted before a hearing officer to be designated by the Administrator. The hearing shall be conducted by the hearing officer in an informal, orderly and expeditious manner. The hearing officer shall have authority to call witnesses, receive oral and written testimony and take such action as may be necessary to assure the fair and efficient conduct of the hearing. Following the conclusion of the hearing, the hearing officer shall forward the record of the hearing to the Administrator.

[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987]

§142.55   Final schedule.

(a) Within 30 days after the termination of the public hearing pursuant to §142.54, the Administrator shall, taking into consideration information obtained during such hearing, revise the proposed schedule as necessary and prescribe the final schedule for compliance and interim measures for the public water system granted an exemption under §142.52.

(b) Such schedule must require compliance with each contaminant level and treatment technique requirement with respect to which the exemption was granted as expeditiously as practicable but not later than 3 years after the otherwise applicable compliance date established in section 1412(b)(10) of the Act.

(c) [Reserved]

[41 FR 2918, Jan. 20, 1976, as amended at 52 FR 20675, June 2, 1987; 63 FR 43848, Aug. 14, 1998]

§142.56   Extension of date for compliance.

In the case of a public water system which serves a population of not more than 3,300 persons and which needs financial assistance for the necessary improvements, an exemption granted under §142.50(b) (1) or (2) may be renewed for one or more additional 2-year periods, but not to exceed a total of 6 additional years, if the public water system establishes that the public water system is taking all practicable steps to meet the requirements of section 1416(b)(2)(B) of the Act and the established compliance schedule.

[63 FR 43848, Aug. 14, 1998]

§142.57   Bottled water, point-of-use, and point-of-entry devices.

(a) A State may require a public water system to use bottled water, point-of-use devices, or point-of-entry devices as a condition of granting an exemption from the requirements of §§141.61 (a) and (c), and 141.62 of this chapter.

(b) Public water systems using bottled water as a condition of obtaining an exemption from the requirements of §§141.61 (a) and (c) and 141.62(b) must meet the requirements in §142.62(g).

(c) Public water systems that use point-of-use or point-of-entry devices as a condition for receiving an exemption must meet the requirements in §141.62(h).

[56 FR 3596, Jan. 30, 1991, as amended at 56 FR 30280, July 1, 1991]

Subpart G—Identification of Best Technology, Treatment Techniques or Other Means Generally Available

§142.60   Variances from the maximum contaminant level for total trihalomethanes.

(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act, hereby identifies the following as the best technology, treatment techiques or other means generally available for achieving compliance with the maximum contaminant level for total trihalomethanes (§141.12(c)):

(1) Use of chloramines as an alternate or supplemental disinfectant or oxidant.

(2) Use of chlorine dioxide as an alternate or supplemental disinfectant or oxidant.

(3) Improved existing clarification for THM precursor reduction.

(4) Moving the point of chlorination to reduce TTHM formation and, where necessary, substituting for the use of chlorine as a pre-oxidant chloramines, chlorine dioxide or potassium permanganate.

(5) Use of powdered activated carbon for THM precursor or TTHM reduction seasonally or intermittently at dosages not to exceed 10 mg/L on an annual average basis.

(b) The Administrator in a state that does not have primary enforcement responsibility or a state with primary enforcement responsibility (primacy state) that issues variances shall require a community water system to install and/or use any treatment method identified in §142.60(a) as a condition for granting a variance unless the Administrator or primacy state determines that such treatment method identified in §142.60(a) is not available and effective for TTHM control for the system. A treatment method shall not be considered to be “available and effective” for an individual system if the treatment method would not be technically appropriate and technically feasible for that system or would only result in a marginal reduction in TTHM for the system. If, upon application by a system for a variance, the Administrator or primacy state that issues variances determines that none of the treatment methods identified in §142.60(a) is available and effective for the system, that system shall be entitled to a variance under the provisions of section 1415(a)(1)(A) of the Act. The Administrator's or primacy state's determination as to the availability and effectiveness of such treatment methods shall be based upon studies by the system and other relevant information. If a system submits information intending to demonstrate that a treatment method is not available and effective for TTHM control for that system, the Administrator or primacy state shall make a finding whether this information supports a decision that such treatment method is not available and effective for that system before requiring installation and/or use of such treatment method.

(c) Pursuant to §142.43 (c) through (g) or corresponding state regulations, the Administrator or primacy state that issues variances shall issue a schedule of compliance that may require the system being granted the variance to examine the following treatment methods (1) to determine the probability that any of these methods will significantly reduce the level of TTHM for that system, and (2) if such probability exists, to determine whether any of these methods are technically feasible and economically reasonable, and that the TTHM reductions obtained will be commensurate with the costs incurred with the installation and use of such treatment methods for that system:

Introduction of off-line water storage for THM precursor reduction.

Aeration for TTHM reduction, where geographically and environmentally appropriate.

Introduction of clarification where not currently practiced.

Consideration of alternative sources of raw water.

Use of ozone as an alternate or supplemental disinfectant or oxidant.

(d) If the Administrator or primacy state that issues variances determines that a treatment method identified in §142.60(c) is technically feasible, economically reasonable and will achieve TTHM reductions commensurate with the costs incurred with the installation and/or use of such treatment method for the system, the Administrator or primacy state shall require the system to install and/or use that treatment method in connection with a compliance schedule issued under the provisions of section 1415(a)(1)(A) of the Act. The Administrator's or primacy state's determination shall be based upon studies by the system and other relevant information. In no event shall the Administrator require a system to install and/or use a treatment method not described in §142.60 (a) or (c) to obtain or maintain a variance from the TTHM Rule or in connection with any variance compliance schedule.

[48 FR 8414, Feb. 28, 1983]

§142.61   Variances from the maximum contaminant level for fluoride.

(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act, hereby identifies the following as the best technology, treatment techniques or other means generally available for achieving compliance with the Maximum Contaminant Level for fluoride.

(1) Activated alumina absorption, centrally applied

(2) Reverse osmosis, centrally applied

(b) The Administrator in a state that does not have primary enforcement responsibility or a state with primary enforcement responsibility (primacy state) that issues variances shall require a community water system to install and/or use any treatment method identified in §142.61(a) as a condition for granting a variance unless the Administrator or the primacy state determines that such treatment method identified in §142.61(a) as a condition for granting a variance is not available and effective for fluoride control for the system. A treatment method shall not be considered to be “available and effective” for an individual system if the treatment method would not be technically appropriate and technically feasible for that system. If, upon application by a system for a variance, the Administrator or primacy state that issues variances determines that none of the treatment methods identified in §142.61(a) are available and effective for the system, that system shall be entitled to a variance under the provisions of section 1415(a)(1)(A) of the Act. The Administrator's or primacy state's determination as to the availability and effectiveness of such treatment methods shall be based upon studies by the system and other relevant information. If a system submits information to demonstrate that a treatment method is not available and effective for fluoride control for that system, the Administrator or primacy state shall make a finding whether this information supports a decision that such treatment method is not available and effective for that system before requiring installation and/or use of such treatment method.

(c) Pursuant to §142.43 (c)-(g) or corresponding state regulations, the Administrator or primacy state that issues variances shall issue a schedule of compliance that may require the system being granted the variance to examine the following treatment methods (1) to determine the probability that any of these methods will significantly reduce the level of fluoride for that system, and (2) if such probability exists, to determine whether any of these methods are technically feasible and economically reasonable, and that the fluoride reductions obtained will be commensurate with the costs incurred with the installation and use of such treatment methods for that system:

(1) Modification of lime softening;

(2) Alum coagulation;

(3) Electrodialysis;

(4) Anion exchange resins;

(5) Well field management;

(6) Alternate source;

(7) Regionalization.

(d) If the Administrator or primary state that issues variances determines that a treatment method identified in §142.61(c) or other treatment method is technically feasible, economically reasonable, and will achieve fluoride reductions commensurate with the costs incurred with the installation and/or use of such treatment method for the system, the Administrator or primacy state shall require the system to install and/or use that treatment method in connection with a compliance schedule issued under the provisions of section 1415(a)(1)(A) of the Act. The Administrator's or primacy state's determination shall be based upon studies by the system and other relevant information.

[51 FR 11411, Apr. 2, 1986]

§142.62   Variances and exemptions from the maximum contaminant levels for organic and inorganic chemicals.

(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act hereby identifies the technologies listed in paragraphs (a)(1) through (a)(54) of this section as the best technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant levels for organic chemicals listed in §141.61 (a) and (c):

ContaminantBest available technologies
PTA1 GAC2 OX3
(1) BenzeneXX
(2) Carbon tetrachlorideXX
(3) 1,2-DichloroethaneXX
(4) TrichloroethyleneXX
(5) para-DichlorobenzeneXX
(6) 1,1-DichloroethyleneXX
(7) 1,1,1-TrichloroethaneXX
(8) Vinyl chlorideX
(9) cis-1,2-DichloroethyleneXX
(10) 1,2-DichloropropaneXX
(11) EthylbenzeneXX
(12) MonochlorobenzeneXX
(13) o-DichlorobenzeneXX
(14) StyreneXX
(15) TetrachloroethyleneXX
(16) TolueneXX
(17) trans-1,2-DichloroethyleneXX
(18) Xylense (total)XX
(19) AlachlorX
(20) AldicarbX
(21) Aldicarb sulfoxideX
(22) Aldicarb sulfoneX
(23) AtrazineX
(24) CarbofuranX
(25) ChlordaneX
(26) DibromochloropropaneXX
(27) 2,4-DX
(28) Ethylene dibromideXX
(29) HeptachlorX
(30) Heptachlor epoxideX
(31) LindaneX
(32) MethoxychlorX
(33) PCBsX
(34) PentachlorophenolX
(35) ToxapheneX
(36) 2,4,5-TPX
(37) Benzo[a]pyreneX
(38) DalaponX
(39) DichloromethaneX
(40) Di(2-ethylhexyl)adipateXX
(41) Di(2-ethylhexyl)phthalateX
(42) DinosebX
(43) DiquatX
(44) EndothallX
(45) EndrinX
(46) GlyphosateX
(47) HexachlorobenzeneX
(48) HexachlorocyclopentadieneXX
(49) Oxamyl (Vydate)X
(50) PicloramX
(51) SimazineX
(52) 1,2,4-TrichlorobenzeneXX
(53) 1,1,2-TrichloroethaneXX
(54) 2,3,7,8-TCDD (Dioxin)X

1Packed Tower Aeration

2Granular Activated Carbon

3Oxidation (Chlorination or Ozonation)

(b) The Administrator, pursuant to section 1415(a)(1)(A) of the Act, hereby identifies the following as the best technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant levels for the inorganic chemicals listed in §141.62:

BAT for Inorganic Compounds Listed in §141.62(b)

Chemical nameBAT(s)
Antimony2,7
Arsenic451, 2, 5, 6, 7, 9, 12
Asbestos2,3,8
Barium5,6,7,9
Beryllium1,2,5,6,7
Cadmium2,5,6,7
Chromium2,5,62,7
Cyanide5,7,10
Mercury21,4,61,71
Nickel5,6,7
Nitrite5,7,9
Nitrate5,7
Selenium1,23,6,7,9
Thallium1,5

1BAT only if influent Hg concentrations ≤10µg/1.

2BAT for Chromium III only.

3BAT for Selenium IV only.

4BATs for Arsenic V. Pre-oxidation may be required to convert Arsenic III to Arsenic V.

5To obtain high removals, iron to arsenic ratio must be at least 20:1.

Key to BATS in Table

1 = Activated Alumina

2 = Coagulation/Filtration (not BAT for systems <500 service connections)

3 = Direct and Diatomite Filtration

4 = Granular Activated Carbon

5 = Ion Exchange

6 = Lime Softening (not BAT for systems <500 service connections)

7 = Reverse Osmosis

8 = Corrosion Control

9 = Electrodialysis

10 = Chlorine

11 = Ultraviolet

12 = Oxidation/Filtration

(c) A State shall require community water systems and non-transient, non-community water systems to install and/or use any treatment method identified in §142.62 (a) and (b) as a condition for granting a variance except as provided in paragraph (d) of this section. If, after the system's installation of the treatment method, the system cannot meet the MCL, that system shall be eligible for a variance under the provisions of section 1415(a)(1)(A) of the Act.

(d) If a system can demonstrate through comprehensive engineering assessments, which may include pilot plant studies, that the treament methods identified in §142.62 (a) and (b) would only achieve a de minimis reduction in contaminants, the State may issue a schedule of compliance that requires the system being granted the variance to examine other treatment methods as a condition of obtaining the variance.

(e) If the State determines that a treatment method identified in paragraph (d) of this section is technically feasible, the Administrator or primacy State may require the system to install and/or use that treatment method in connection with a compliance schedule issued under the provisions of section 1415(a)(1)(A) of the Act. The State's determination shall be based upon studies by the system and other relevant information.

(f) The State may require a public water system to use bottled water, point-of-use devices, point-of-entry devices or other means as a condition of granting a variance or an exemption from the requirements of §§141.61 (a) and (c) and 141.62, to avoid an unreasonable risk to health. The State may require a public water system to use bottled water and point-of-use devices or other means, but not point-of-entry devices, as a condition for granting an exemption from corrosion control treatment requirements for lead and copper in §§141.81 and 141.82 to avoid an unreasonable risk to health. The State may require a public water system to use point-of-entry devices as a condition for granting an exemption from the source water and lead service line replacement requirements for lead and copper under §§141.83 or 141.84 to avoid an unreasonable risk to health.

(g) Public water systems that use bottled water as a condition for receiving a variance or an exemption from the requirements of §§141.61 (a) and (c) and 141.62, or an exemption from the requirements of §§141.81-141.84 must meet the requirements specified in either paragraph (g)(1) or (g)(2) and paragraph (g)(3) of this section:

(1) The Administrator or primacy State must require and approve a monitoring program for bottled water. The public water system must develop and put in place a monitoring program that provides reasonable assurances that the bottled water meets all MCLs. The public water system must monitor a representative sample of the bottled water for all contaminants regulated under §§141.61 (a) and (c) and 141.62 during the first three-month period that it supplies the bottled water to the public, and annually thereafter. Results of the monitoring program shall be provided to the State annually.

(2) The public water system must receive a certification from the bottled water company that the bottled water supplied has been taken from an “approved source” as defined in 21 CFR 129.3(a); the bottled water company has conducted monitoring in accordance with 21 CFR 129.80(g) (1) through (3); and the bottled water does not exceed any MCLs or quality limits as set out in 21 CFR 165.110, part 110, and part 129. The public water system shall provide the certification to the State the first quarter after it supplies bottled water and annually thereafter. At the State's option a public water system may satisfy the requirements of this subsection if an approved monitoring program is already in place in another State.

(3) The public water system is fully responsible for the provision of sufficient quantities of bottled water to every person supplied by the public water system via door-to-door bottled water delivery.

(h) Public water systems that use point-of-use or point-of-entry devices as a condition for obtaining a variance or an exemption from NPDWRs must meet the following requirements:

(1) It is the responsibility of the public water system to operate and maintain the point-of-use and/or point-of-entry treatment system.

(2) Before point-of-use or point-of-entry devices are installed, the public water system must obtain the approval of a monitoring plan which ensures that the devices provide health protection equivalent to that provided by central water treatment.

(3) The public water system must apply effective technology under a State-approved plan. The microbiological safety of the water must be maintained at all times.

(4) The State must require adequate certification of performance, field testing, and, if not included in the certification process, a rigorous engineering design review of the point-of-use and/or point-of-entry devices.

(5) The design and application of the point-of-use and/or point-of-entry devices must consider the potential for increasing concentrations of heterotrophic bacteria in water treated with activated carbon. It may be necessary to use frequent backwashing, post-contactor disinfection, and Heterotrophic Plate Count monitoring to ensure that the microbiological safety of the water is not compromised.

(6) The State must be assured that buildings connected to the system have sufficient point-of-use or point-of-entry devices that are properly installed, maintained, and monitored such that all consumers will be protected.

(7) In requiring the use of a point-of-entry device as a condition for granting an exemption from the treatment requirements for lead and copper under §§141.83 or 141.84, the State must be assured that use of the device will not cause increased corrosion of lead and copper bearing materials located between the device and the tap that could increase contaminant levels at the tap.

[56 FR 3596, Jan. 30, 1991, as amended at 56 FR 26563, June 7, 1991; 57 FR 31848, July 17, 1992; 59 FR 33864, June 30, 1994; 59 FR 34325, July 1, 1994; 66FR 7066, Jan. 22, 2001; 69 FR 38857, June 29, 2004]

§142.63   Variances and exemptions from the maximum contaminant level for total coliforms.

(a) No variances or exemptions from the maximum contaminant level in §141.63 of this chapter are permitted.

(b) EPA has stayed this section as it relates to the total coliform MCL of §141.63(a) of this chapter for systems that demonstrate to the State that the violation of the total coliform MCL is due to a persistent growth of total coliforms in the distribution system rather than fecal or pathogenic contamination, a treatment lapse or deficiency, or a problem in the operation or maintenance of the distribution system. This stay is applicable until March 31, 2016, at which time the total coliform MCL is no longer applicable.

[54 FR 27568, June 29, 1989, as amended at 56 FR 1557, Jan. 15, 1991; 78 FR 10365, Feb. 13, 2013]

§142.64   Variances and exemptions from the requirements of part 141, subpart H—Filtration and Disinfection.

(a) No variances from the requirements in part 141, subpart H are permitted.

(b) No exemptions from the requirements in §141.72 (a)(3) and (b)(2) to provide disinfection are permitted.

[54 FR 27540, June 29, 1989]

§142.65   Variances and exemptions from the maximum contaminant levels for radionuclides.

(a)(1) Variances and exemptions from the maximum contaminant levels for combined radium-226 and radium-228, uranium, gross alpha particle activity (excluding Radon and Uranium), and beta particle and photon radioactivity.

(i) The Administrator, pursuant to section 1415(a)(1)(A) of the Act, hereby identifies the following as the best available technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant levels for the radionuclides listed in §141.66(b), (c), (d), and (e) of this chapter, for the purposes of issuing variances and exemptions, as shown in Table A to this paragraph.

Table A—BAT for Radionuclides Listed in §141.66

Contaminant BAT
Combined radium-226 and radium-228Ion exchange, reverse osmosis, lime softening.
UraniumIon exchange, reverse osmosis, lime softening, coagulation/filtration.
Gross alpha particle activity (excluding radon and uranium)Reverse osmosis.
Beta particle and photon radioactivityIon exchange, reverse osmosis.

(ii) In addition, the Administrator hereby identifies the following as the best available technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant levels for the radionuclides listed in §141.66(b), (c), (d), and (e) of this chapter, for the purposes of issuing variances and exemptions to small drinking water systems, defined here as those serving 10,000 persons or fewer, as shown in Table C to this paragraph.

Table B—List of Small Systems Compliance Technologies for Radionuclides and Limitations to Use

Unit technologies Limitations (see footnotes) Operator skill level required1 Raw water quality range &
considerations1
1. Ion exchange (IE)(a)IntermediateAll ground waters.
2. Point of use (POU2) IE(b)BasicAll ground waters.
3. Reverse osmosis (RO)(c)AdvancedSurface waters usually require pre-filtration.
4. POU2 RO(b)BasicSurface waters usually require pre-filtration.
5. Lime softening(d)AdvancedAll waters.
6. Green sand filtration(e)Basic.
7. Co-precipitation with barium sulfate(f)Intermediate to AdvancedGround waters with suitable water quality.
8. Electrodialysis/electrodialysis reversal   Basic to IntermediateAll ground waters.
9. Pre-formed hydrous manganese oxide filtration(g)IntermediateAll ground waters.
10. Activated alumina(a), (h)AdvancedAll ground waters; competing anion concentrations may affect regeneration frequency.
11. Enhanced coagulation/filtration(i)AdvancedCan treat a wide range of water qualities.

1National Research Council (NRC). Safe Water from Every Tap: Improving Water Service to Small Communities. National Academy Press. Washington, D.C. 1997.

2A POU, or “point-of-use” technology is a treatment device installed at a single tap used for the purpose of reducing contaminants in drinking water at that one tap. POU devices are typically installed at the kitchen tap. See the April 21, 2000 NODA for more details.

Limitations Footnotes: Technologies for Radionuclides:

aThe regeneration solution contains high concentrations of the contaminant ions. Disposal options should be carefully considered before choosing this technology.

bWhen POU devices are used for compliance, programs for long-term operation, maintenance, and monitoring must be provided by water utility to ensure proper performance.

cReject water disposal options should be carefully considered before choosing this technology. See other RO limitations described in the SWTR compliance technologies table.

dThe combination of variable source water quality and the complexity of the water chemistry involved may make this technology too complex for small surface water systems.

eRemoval efficiencies can vary depending on water quality.

fThis technology may be very limited in application to small systems. Since the process requires static mixing, detention basins, and filtration, it is most applicable to systems with sufficiently high sulfate levels that already have a suitable filtration treatment train in place.

gThis technology is most applicable to small systems that already have filtration in place.

hHandling of chemicals required during regeneration and pH adjustment may be too difficult for small systems without an adequately trained operator.

iAssumes modification to a coagulation/filtration process already in place.

Table C—BAT for Small Community Water Systems for the Radionuclides Listed in §141.66

Contaminant Compliance technologies1 for system size categories (population served)
25-500 501-3,300 3,300-10,000
Combined radium-226 and radium-2281, 2, 3, 4, 5, 6, 7, 8, 91, 2, 3, 4, 5, 6, 7, 8, 91, 2, 3, 4, 5, 6, 7, 8, 9.
Gross alpha particle activity3, 43, 43, 4.
Beta particle activity and photon activity1, 2, 3, 41, 2, 3, 41, 2, 3, 4.
Uranium1, 2, 4, 10, 111, 2, 3, 4, 5, 10, 111, 2, 3, 4, 5, 10, 11.

1Note: Numbers correspond to those technologies found listed in the table B to this paragraph.

(2) A State shall require community water systems to install and/or use any treatment technology identified in Table A to this section, or in the case of small water systems (those serving 10,000 persons or fewer), Table B and Table C of this section, as a condition for granting a variance except as provided in paragraph (a)(3) of this section. If, after the system's installation of the treatment technology, the system cannot meet the MCL, that system shall be eligible for a variance under the provisions of section 1415(a)(1)(A) of the Act.

(3) If a community water system can demonstrate through comprehensive engineering assessments, which may include pilot plant studies, that the treatment technologies identified in this section would only achieve a de minimus reduction in the contaminant level, the State may issue a schedule of compliance that requires the system being granted the variance to examine other treatment technologies as a condition of obtaining the variance.

(4) If the State determines that a treatment technology identified under paragraph (a)(3) of this section is technically feasible, the Administrator or primacy State may require the system to install and/or use that treatment technology in connection with a compliance schedule issued under the provisions of section 1415(a)(1)(A) of the Act. The State's determination shall be based upon studies by the system and other relevant information.

(5) The State may require a community water system to use bottled water, point-of-use devices, point-of-entry devices or other means as a condition of granting a variance or an exemption from the requirements of §141.66 of this chapter, to avoid an unreasonable risk to health.

(6) Community water systems that use bottled water as a condition for receiving a variance or an exemption from the requirements of §141.66 of this chapter must meet the requirements specified in either §142.62(g)(1) or §142.62(g)(2) and (g)(3).

(7) Community water systems that use point-of-use or point-of-entry devices as a condition for obtaining a variance or an exemption from the radionuclides NPDWRs must meet the conditions in §142.62(h)(1) through (h)(6).

(b) [Reserved]

[65 FR 76751, Dec. 7, 2000]

Subpart H—Indian Tribes

Source: 53 FR 37411, Sept. 26, 1988, unless otherwise noted.

§142.72   Requirements for Tribal eligibility.

The Administrator is authorized to treat an Indian tribe as eligible to apply for primary enforcement for the Public Water System Program and the authority to waive the mailing requirements of §141.155(a) if it meets the following criteria:

(a) The Indian Tribe is recognized by the Secretary of the Interior.

(b) The Indian Tribe has a tribal governing body which is currently “carrying out substantial governmental duties and powers” over a defined area, (i.e., is currently performing governmental functions to promote the health, safety, and welfare of the affected population within a defined geographic area).

(c) The Indian Tribe demonstrates that the functions to be performed in regulating the public water systems that the applicant intends to regulate are within the area of the Indian Tribal government's jurisdiction.

(d) The Indian Tribe is reasonably expected to be capable, in the Administrator's judgment, of administering (in a manner consistent with the terms and purposes of the Act and all applicable regulations) an effective Public Water System program.

[53 FR 37411, Sept. 26, 1988, as amended at 59 FR 64344, Dec. 14, 1994; 63 FR 44535, Aug. 19, 1998]

§142.76   Request by an Indian Tribe for a determination of eligibility.

An Indian Tribe may apply to the Administrator for a determination that it meets the criteria of section 1451 of the Act. The application shall be concise and describe how the Indian Tribe will meet each of the requirements of §142.72. The application shall consist of the following information:

(a) A statement that the Tribe is recognized by the Secretary of the Interior.

(b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. The statement should:

(1) Describe the form of the Tribal government;

(2) Describe the types of governmental functions currently performed by the Tribal governing body such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and welfare of the affected population; taxation; and the exercise of the power of eminent domain; and

(3) Identify the sources of the Tribal government's authority to carry out the governmental functions currently being performed.

(c) A map or legal description of the area over which the Indian Tribe asserts jurisdiction; a statement by the Tribal Attorney General (or equivalent official) which describes the basis for the Tribe's jurisdictional assertion (including the nature or subject matter of the asserted jurisdiction); a copy of those documents such as Tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which the Tribe believes are relevant to its assertions regarding jurisdiction; and a description of the locations of the public water systems the Tribe proposes to regulate.

(d) A narrative statement describing the capability of the Indian Tribe to administer an effective Public Water System program. The narrative statement should include:

(1) A description of the Indian Tribe's previous management experience which may include, the administration of programs and services authorized by the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or the Indian Sanitation Facilities Construction Activity Act (42 U.S.C. 2004a).

(2) A list of existing environmental or public health programs administered by the Tribal governing body and a copy of related Tribal laws, regulations and policies.

(3) A description of the Indian Tribe's accounting and procurement systems.

(4) A description of the entity (or entities) which exercise the executive, legislative, and judicial functions of the Tribal government.

(5) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary enforcement responsibility, including a description of the relationship between owners/operators of the public water systems and the agency.

(6) A description of the technical and administrative capabilities of the staff to administer and manage an effective Public Water System Program or a plan which proposes how the Tribe will acquire additional administrative and/or technical expertise. The plan must address how the Tribe will obtain the funds to acquire the additional administrative and technical expertise.

(e) The Administrator may, in his discretion, request further documentation necessary to support a Tribe's eligibility.

(f) If the Administrator has previously determined that a Tribe has met the prerequisites that make it eligible to assume a role similar to that of a state as provided by statute under the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act, then that Tribe need provide only that information unique to the Public Water System program (paragraphs (c), (d)(5) and (6) of this section).

[53 FR 37411, Sept. 26, 1988, as amended at 59 FR 64344, Dec. 14, 1994]

§142.78   Procedure for processing an Indian Tribe's application.

(a) The Administrator shall process a completed application of an Indian Tribe in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.

(b) A tribe that meets the requirements of §141.72 of this chapter is eligible to apply for development grants and primacy enforcement responsibility for a Public Water System Program and associated funding under section 1443(a) of the Act and for primary enforcement responsibility for public water systems under section 1413 of the Act and for the authority to waive the mailing requirement of §141.155(a) of this chapter.

[53 FR 37411 Sept. 26, 1988, as amended at 59 FR 64345, Dec. 14, 1994; 63 FR 71376, Dec. 28, 1998]

Subpart I—Administrator's Review of State Decisions that Implement Criteria Under Which Filtration Is Required

Source: 54 FR 27540, June 29, 1989, unless otherwise noted.

§142.80   Review procedures.

(a) The Administrator may initiate a comprehensive review of the decisions made by States with primary enforcement responsibility to determine, in accordance with §141.71 of this chapter, if public water systems using surface water sources must provide filtration treatment. The Administrator shall complete this review within one year of its initiation and shall schedule subsequent reviews as (s)he deems necessary.

(b) EPA shall publish notice of a proposed review in the Federal Register. Such notice must:

(1) Provide information regarding the location of data and other information pertaining to the review to be conducted and other information including new scientific matter bearing on the application of the criteria for avoiding filtration; and

(2) Advise the public of the opportunity to submit comments.

(c) Upon completion of any such review, the Administrator shall notify each State affected by the results of the review and shall make the results available to the public.

§142.81   Notice to the State.

(a) If the Administrator finds through periodic review or other available information that a State (1) has abused its discretion in applying the criteria for avoiding filtration under §141.71 of this chapter in determining that a system does not have to provide filtration treatment, or (2) has failed to prescribe compliance schedules for those systems which must provide filtration in accordance with section 1412(b)(7)(C)(ii) of the Act, (s)he shall notify the State of these findings. Such notice shall:

(1) Identify each public water system for which the Administrator finds the State has abused its discretion;

(2) Specify the reasons for the finding;

(3) As appropriate, propose that the criteria of §141.71 of this chapter be applied properly to determine the need for a public water system to provide filtration treatment or propose a revised schedule for compliance by the public water system with the filtration treatment requirements;

(b) The Administrator shall also notify the State that a public hearing is to be held on the provisions of the notice required by paragraph (a) of this section. Such notice shall specify the time and location of the hearing. If, upon notification of a finding by the Administrator that the State has abused its discretion under §141.71 of this chapter, the State takes corrective action satisfactory to the Administrator, the Administrator may rescind the notice to the State of a public hearing.

(c) The Administrator shall publish notice of the public hearing in the Federal Register and in a newspaper of general circulation in the involved State, including a summary of the findings made pursuant to paragraph (a) of this section, a statement of the time and location for the hearing, and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing.

(d) Hearings convened pursuant to paragraphs (b) and (c) of this section shall be conducted before a hearing officer to be designated by the Administrator. The hearing shall be conducted by the hearing officer in an informal, orderly, and expeditious manner. The hearing officer shall have the authority to call witnesses, receive oral and written testimony, and take such other action as may be necessary to ensure the fair and efficient conduct of the hearing. Following the conclusion of the hearing, the hearing officer may make a recommendation to the Administrator based on the testimony presented at the hearing and shall forward any such recommendation and the record of the hearing to the Administrator.

(e) Within 180 days after the date notice is given pursuant to paragraph (b) of this section, the Administrator shall:

(1) Rescind the notice to the State of a public hearing if the State takes corrective action satisfactory to the Administrator; or

(2) Rescind the finding for which the notice was given and promptly notify the State of such rescission; or

(3) Uphold the finding for which the notice was given. In this event, the Administrator shall revoke the State's decision that filtration was not required or revoke the compliance schedule approved by the State, and promulgate, as appropriate, with any appropriate modifications, a revised filtration decision or compliance schedule and promptly notify the State of such action.

(f) Revocation of a State's filtration decision or compliance schedule and/or promulgation of a revised filtration decision or compliance schedule shall take effect 90 days after the State is notified under paragraph (e)(3) of this section.

Subpart J [Reserved]

Subpart K—Variances for Small System

Source: 63 FR 43848, Aug. 14, 1998, unless otherwise noted.

General Provisions

§142.301   What is a small system variance?

Section 1415(e) of the Act authorizes the issuance of variances from the requirement to comply with a maximum contaminant level or treatment technique to systems serving fewer than 10,000 persons. The purpose of this subpart is to provide the procedures and criteria for obtaining these variances. The regulations in this subpart shall take effect on September 14, 1998.

§142.302   Who can issue a small system variance?

A small system variance under this subpart may only be issued by either:

(a) A State that is exercising primary enforcement responsibility under Subpart B for public water systems under the State's jurisdiction; or

(b) The Administrator, for a public water system in a State which does not have primary enforcement responsibility.

§142.303   Which size public water systems can receive a small system variance?

(a) A State exercising primary enforcement responsibility for public water systems (or the Administrator for other systems) may grant a small system variance to public water systems serving 3,300 or fewer persons.

(b) With the approval of the Administrator pursuant to §142.312, a State exercising primary enforcement responsibility for public water systems may grant a small system variance to public water systems serving more than 3,300 persons but fewer than 10,000 persons.

(c) In determining the number of persons served by the public water system, the State or Administrator must include persons served by consecutive systems. A small system variance granted to a public water system would also apply to any consecutive system served by it.

§142.304   For which of the regulatory requirements is a small system variance available?

(a) A small system variance is not available under this subpart for a national primary drinking water regulation for a microbial contaminant (including a bacterium, virus, or other organism) or an indicator or treatment technique for a microbial contaminant.

(b) A small system variance under this subpart is otherwise only available for compliance with a requirement specifying a maximum contaminant level or treatment technique for a contaminant with respect to which;

(1) a national primary drinking water regulation was promulgated on or after January 1, 1986; and

(2) the Administrator has published a small system variance technology pursuant to Section 1412(b)(15) of the Act.

Note to paragraph (b)(1): Small system variances are not available for public water systems above the pre-1986 maximum contaminant level even if subsequently revised. If the Agency revises a pre-1986 maximum contaminant level and makes it more stringent, then a variance would be available for that contaminant, but only up to the pre-1986 maximum contaminant level.

§142.305   When can a small system variance be granted by a State?

No small system variance can be granted by a State until the later of the following:

(a) 90 days after the State proposes to grant the small system variance;

(b) If a State is proposing to grant a small system variance to a public water system serving 3,300 or fewer persons and the Administrator objects to the small system variance, the date on which the State makes the recommended modifications or responds in writing to each objection; or

(c) If a State is proposing to grant a small system variance to a public water system serving a population more than 3,300 and fewer than 10,000 persons, the date the Administrator approves the small system variance. The Administrator must approve or disapprove the variance within 90 days after it is submitted to the Administrator for review.

Review of Small System Variance Application

§142.306   What are the responsibilities of the public water system, State and the Administrator in ensuring that sufficient information is available and for evaluation of a small system variance application?

(a) A public water system requesting a small system variance must provide accurate and correct information to the State or the Administrator to issue a small system variance in accordance with this subpart. A State may assist a public water system in compiling information required for the State or the Administrator to issue a small system variance in accordance with this subpart.

(b) Based upon an application for a small system variance and other information, and before a small system variance may be proposed under this subpart, the State or the Administrator must find and document the following:

(1) The public water system is eligible for a small system variance pursuant to §§142.303 (i.e., the system serves a population of fewer than 10,000 persons) and 142.304 (i.e., the contaminant for which the small system variance is sought is not excluded from variance eligibility);

(2) The public water system cannot afford to comply, in accordance with the affordability criteria established by the State (or by the Administrator in States which do not have primary enforcement responsibility), with the national primary drinking water regulation for which a small system variance is sought, including by:

(i) Treatment;

(ii) Alternative sources of water supply;

(iii) Restructuring or consolidation changes, including ownership change and/or physical consolidation with another public water system; or

(iv) Obtaining financial assistance pursuant to Section 1452 of the Act or any other Federal or State program;

(3) The public water system meets the source water quality requirements for installing the small system variance technology developed pursuant to guidance published under section 1412(b)(15) of the Act;

(4) The public water system is financially and technically capable of installing, operating and maintaining the applicable small system variance technology; and

(5) The terms and conditions of the small system variance, as developed through compliance with §142.307, ensure adequate protection of human health, considering the following:

(i) The quality of the source water for the public water system; and

(ii) Removal efficiencies and expected useful life of the small system variance technology.

§142.307   What terms and conditions must be included in a small system variance?

(a) A State or the Administrator must clearly specify enforceable terms and conditions of a small system variance.

(b) The terms and conditions of a small system variance issued under this subpart must include, at a minimum, the following requirements:

(1) Proper and effective installation, operation and maintenance of the applicable small system variance technology in accordance with guidance published by the Administrator pursuant to section 1412(b)(15) of the Act, taking into consideration any relevant source water characteristics and any other site-specific conditions that may affect proper and effective operation and maintenance of the technology;

(2) Monitoring requirements, for the contaminant for which a small system variance is sought, as specified in 40 CFR part 141; and

(3) Any other terms or conditions that are necessary to ensure adequate protection of public health, which may include:

(i) Public education requirements; and

(ii) Source water protection requirements.

(c) The State or the Administrator must establish a schedule for the public water system to comply with the terms and conditions of the small system variance which must include, at a minimum, the following requirements:

(1) Increments of progress, such as milestone dates for the public water system to apply for financial assistance and begin capital improvements;

(2) Quarterly reporting to the State or Administrator of the public water system's compliance with the terms and conditions of the small system variance;

(3) Schedule for the State or the Administrator to review the small system variance under paragraph (d) of this section; and

(4) Compliance with the terms and conditions of the small system variance as soon as practicable but not later than 3 years after the date on which the small system variance is granted. The Administrator or State may allow up to 2 additional years if the Administrator or State determines that additional time is necessary for the public water system to:

(i) Complete necessary capital improvements to comply with the small system variance technology, secure an alternative source of water, or restructure or consolidate; or

(ii) Obtain financial assistance provided pursuant to section 1452 of the Act or any other Federal or State program.

(d) The State or the Administrator must review each small system variance granted not less often than every 5 years after the compliance date established in the small system variance to determine whether the public water system continues to meet the eligibility criteria and remains eligible for the small system variance and is complying with the terms and conditions of the small system variance. If the public water system would no longer be eligible for a small system variance, the State or the Administrator must determine whether continuing the variance is in the public interest. If the State or the Administrator finds that continuing the variance is not in the public interest, the variance must be withdrawn.

Public Participation

§142.308   What public notice is required before a State or the Administrator proposes to issue a small system variance?

(a) At least fifteen (15) days before the date of proposal, and at least thirty (30) days prior to a public meeting to discuss the proposed small system variance, the State, Administrator, or public water system as directed by the State or Administrator, must provide notice to all persons served by the public water system. For billed customers, identified in paragraph (a)(1) of this section, this notice must include the information listed in paragraph (c) of this section. For other persons regularly served by the system, identified in paragraph (a)(2) of this section, the notice shall include the information identified in paragraph (d) of this section. Notice must be provided to all persons served by:

(1) Direct mail or other home delivery to billed customers or other service connections, and

(2) Any other method reasonably calculated to notify, in a brief and concise manner, other persons regularly served by the system. Such methods may include publication in a local newspaper, posting in public places or delivery to community organizations.

(b) At the time of proposal, the State must publish a notice in the State equivalent to the Federal Register or a newspaper or newspapers of wide circulation in the State, or, in the case of the Administrator, in the Federal Register. This notice shall include the information listed in paragraph (c) of this section.

(c) The notice in paragraphs (a)(1) and (b) of this section must include, at a minimum, the following:

(1) Identification of the contaminant[s] for which a small system variance is sought;

(2) A brief statement of the health effects associated with the contaminant[s] for which a small system variance is sought using language in appendix C of part 141 subpart O of this chapter;

(3) The address and telephone number at which interested persons may obtain further information concerning the contaminant and the small system variance;

(4) A brief summary, in easily understandable terms, of the terms and conditions of the small system variance;

(5) A description of the consumer petition process under §142.310 and information on contacting the EPA Regional Office;

(6) a brief statement announcing the public meeting required under §142.309(a), including a statement of the purpose of the meeting, information regarding the time and location for the meeting, and the address and telephone number at which interested persons may obtain further information concerning the meeting; and

(7) In communities with a large proportion of non-English-speaking residents, as determined by the primacy agency, information in the appropriate language regarding the content and importance of the notice.

(d) The notice in paragraph (a)(2) of this section must provide sufficient information to alert readers to the proposed variance and direct them where to receive additional information.

(e) At its option, the State or the Administrator may choose to issue separate notices or additional notices related to the proposed small system variance, provided that the requirements in paragraphs (a) through (d) of this section are satisfied.

(f) Prior to promulgating the final variance, the State or the Administrator must respond in writing to all significant public comments received relating to the small system variance. Response to public comment and any other documentation supporting the issuance of a variance must be made available to the public after final promulgation.

§142.309   What are the public meeting requirements associated with the proposal of a small system variance?

(a) A State or the Administrator must provide for at least one (1) public meeting on the small system variance no later than 15 days after the small system variance is proposed.

(b) At the time of the public meeting, the State or Administrator must prepare and make publicly available, in addition to the information listed in §142.308(c), either:

(1) The proposed small system variance, if the public meeting occurs after proposal of the small system variance; or

(2) A draft of the proposed small system variance, if the public meeting occurs prior to proposal of the proposed small system variance.

(c) Notice of the public meeting must be provided in the manner required under §142.308 at least 30 days in advance of the public meeting. This notice must be provided by the State, the Administrator, or the public water system as directed by the State or Administrator.

§142.310   How can a person served by the public water system obtain EPA review of a State proposed small system variance?

(a) Any person served by the public water system may petition the Administrator to object to the granting of a small system variance within 30 days after a State proposes to grant a small system variance for a public water system.

(b) The Administrator must respond to a petition filed by any person served by the public water system and determine whether to object to the small system variance under §142.311, no later than 60 days after the receipt of the petition.

EPA Review And Approval of Small System Variances

§142.311   What procedures allow the Administrator to object to a proposed small system variance or overturn a granted small system variance for a public water system serving 3,300 or fewer persons?

(a) At the time a State proposes to grant a small system variance under this subpart, the State must submit to the Administrator the proposed small system variance and all supporting information, including any written public comments received prior to proposal.

(b) The Administrator may review and object to any proposed small system variance within 90 days of receipt of the proposed small system variance. The Administrator must notify the State in writing of each basis for the objection and propose a modification to the small system variance to resolve the concerns of the Administrator. The State must make the recommended modification, respond in writing to each objection, or withdraw the proposal to grant the small system variance.

(c) If the State issues the small system variance without resolving the concerns of the Administrator, the Administrator may overturn the State decision to grant the variance if the Administrator determines that the State decision does not comply with the Act or this rule.

§142.312   What EPA action is necessary when a State proposes to grant a small system variance to a public water system serving a population of more than 3,300 and fewer than 10,000 persons?

(a) At the time a State proposes to grant a small system variance to a public water system serving a population of more than 3,300 and fewer than 10,000 persons, the State must submit the proposed small system variance and all supporting information, including public comments received prior to proposal, to the Administrator.

(b) The Administrator must approve or disapprove the small system variance within 90 days of receipt of the proposed small system variance and supporting information. The Administrator must approve the small system variance if it meets each requirement within the Act and this rule.

(c) If the Administrator disapproves the small system variance, the Administrator must notify the State in writing of the reasons for disapproval and the small system variance does not become effective. The State may resubmit the small system variance for review and approval with modifications to address the objections stated by the Administrator.

§142.313   How will the Administrator review a State's program under this subpart?

(a) The Administrator must periodically review each State program under this subpart to determine whether small system variances granted by the State comply with the requirements of the Act, this rule and the affordability criteria developed by the State.

(b) If the Administrator determines that small system variances granted by a State are not in compliance with the requirements of the Act, this rule or the affordability criteria developed by the State, the Administrator shall notify the State in writing of the deficiencies and make public the determinations.

(c) The Administrator's review will be based in part on quarterly reports prepared by the States pursuant to §142.15(a)(1) relating to violations of increments of progress or other violated terms or conditions of small system variances.



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