65FR25981 National Primary Drinking Water Regulations: Public Notification Rule, Part 2/10
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Posting-number: Volume 65, Issue 87, Page 25981, Part 1
[[Page 25989]]
Under Sec. 141.209,
Tier 1 notice is
also required for
exceedance of the
nitrate MCL by NCWS
where permitted to
exceed the MCL by
the primacy agency.
Provide copy of Timing revised to
notice to radio and require notice
TV stations within within 24 hours;
72 hours, or by must use at a
posting or hand minimum electronic
delivery within 72 media, posting,
hours. Posting must hand delivery, or
continue as long as other method
the violation approved by the
persists. primacy agency,
plus any additional
methods necessary
to reach all
persons served.
Additional notices: Revised to not
by newspaper within require additional
14 days or posting notices for same
or hand delivery if violation,
no newspaper is deferring instead
available; by mail to the primacy
within 45 days (may agency to set
be waived if state additional
determines requirements
violation has been (including
corrected); and additional notices)
repeat notice every on a case-by-case
three months basis.
thereafter.
1414(c)(2)(D)(1), (Sec. 141.32)(a)) (Sec. 141.203) Tier
Regulations shall specify For MCL, treatment 2 notice includes
notification procedures for technique, and those described in
violations other than Tier variance or Sec. 141.32(a) of
1; notice shall be in exemption schedule the current rule,
written form. violations. plus the new
standards under the
IESWTR and DBP
rules, and serious
and persistent
monitoring and
testing procedure
violations, as
determined by the
primacy agency.
By newspaper within Revised under Sec.
14 days or by 141.203(b) to
posting or hand require notice
delivery if no within 30 days
newspaper is unless the primacy
available. agency allows an
extension of up to
three months in
appropriate
circumstances.
Extensions will not
be allowed for any
unresolved
violations, nor
will automatic
``across-the-
board'' extensions
for the remaining
violations be
allowed. Unless
primacy agency
directs otherwise,
CWS must use mail
or direct delivery,
and other methods
reasonably
calculated to reach
persons served.
NCWS must use
posting (for as
long as violation
persists or for at
least seven days),
direct delivery, or
mail, and other
methods reasonably
calculated to reach
persons served.
Also requires
systems to consult
the primacy agency
within 24 hours of
learning of an
exceedance of
maximum turbidity
limits.
Additional notices: The initial notice
by mail within 45 does not require
days (may be waived multiple methods of
if State determines delivery unless
violation has been needed to reach
corrected), and persons served.
repeat notice every Repeat notice
three months required every
thereafter by mail three months where
or hand delivery. violation persists,
unless the primacy
agency determines
less frequent
repeat notice (no
less frequent than
annually) is
warranted in
appropriate
circumstances.
Primacy agencies
may not allow less
frequent repeat
notices for
microbiological
violations, nor
will automatic
``across-the-
board'' decreases
in frequency be
allowed for the
remaining
violations. Method
of delivery for
repeat notice will
be the same as that
required for
initial notices.
(Sec. 141.32(b), (Sec. 141.204) The
For monitoring and violations and
testing procedure situations
violations, and requiring a Tier 3
operation under notice are the same
variance or as those described
exemption. in Sec. 141.32(b)
of current rule.
Tier 3 notice is
also required to
announce the
availability of
unregulated
contaminant
monitoring results
as required under
Sec. 141.207; and
for exceedances of
the SMCL for
fluoride as
required under Sec.
141.208.
[[Page 25990]]
By newspaper within Revised to require
three months of the notice within one
violation or the year. Unless
granting of primacy agency
variance or directs otherwise,
exemption, or by CWS must use mail
hand delivery or or direct delivery,
posting if no and other methods
newspaper is reasonably
available. State calculated to reach
may allow less persons served.
frequent public NCWS must use
notice (up to 1 posting (for as
year) for minor long as violation
monitoring persists or minimum
violations. of seven days),
direct delivery, or
mail, and other
methods reasonably
calculated to reach
persons served.
Consumer Confidence
reports (CCRs) or
other annual
reports may be
used, as long as
notice in CCR meets
PN requirements.
Repeat notice every Repeat notice
three months annually; method of
thereafter by mail delivery must be
or hand delivery. the same as in the
initial notice.
Notice to new billing units (Sec. 141.32(c)) (Sec. 141.206)
or new customers (not in Community water Revised to require
statute). system must give a notice for any
copy of the most outstanding
recent public violation or
notice for any situation requiring
outstanding notice, including
violation of any monitoring and
MCL, any treatment testing procedure
technique violations.
requirement, or any
V&E schedule.
Revised to require
non-community water
systems to keep
notice posted for
as long as
violation persists,
even if notice was
initially hand-
delivered or
otherwise
distributed.
1414(c)(2)(C)(ii) and (Sec. 141.32(d)) (Sec. 141.205) Adds
1414(c)(2)(D)(ii), Content Each notice must ``when violation or
of notices. provide a clear situation was
explanation of the found'' and ``when
violation, system expects to
potential health return to
effects, population compliance or
at risk, steps resolve the
being taken to situation'' to
correct violation, content elements.
telephone number of New requirement to
the owner, include
operator, or ``contaminant
designee of the level.'' Adds name
public water and business
system, necessity address to phone
for seeking number of operator.
alternative water Adds new element
supplies, if any, requiring standard
and any preventive language, where
measures consumers applicable, asking
should take until bill paying
the violation is customers to
corrected. provide copies of
notice to other
persons served who
may not have
received the notice
directly from the
PWS.
Also, adds minimum
content elements
for notices of
operation under
variance or
exemption, which
parallel CCR
requirements. No
longer requires
health effects
language for
operation under a
variance or
exemption.
(Sec. 141.32(e)) (New Appendix B)
Systems must Revises standard
include standard health effects
health effects language, using
language for MCL, language identical
treatment to the CCR rule.
technique, variance
or exemption
schedule
violations, and
operation under a
variance or
exemption.
Adds standard
language for
monitoring and
testing procedure
violations.
Providing notice in other (Sec. 141.32(d)) (Sec. 141.205(c)(2)
languages (not in statute). Systems must ) Revised to
provide require that
multilingual notices contain
notices ``where information in the
appropriate''. appropriate
language(s)
regarding the
importance of the
notice or contain a
telephone number or
address so people
can obtain a
translated copy or
request assistance
in the appropriate
language, if system
serves a large
proportion of non-
English speaking
consumers. Systems
must determine what
constitutes a
``large
proportion'' if
primacy agency does
not make a
determination.
Special notice for (Sec. 141.32(f)) (Sec. 141.208)
exceedance of Fluoride Notice of SMCL Moved to new
Secondary Maximum exceedances between Subpart Q (deletes
Contaminant Level (SMCL) 2 mg/l and 4 mg/l Sec. 143.5);
(not in statute). (the MCL level) mandatory language
required within 12 is simplified.
mos.; shall contain
language in Sec.
143.5(b).
Special notice for Public notice is (Sec. 141.209)
exceedance of nitrate MCL required as part of Incorporates public
for NCWS (not in statute). Sec. 141.11(d). notice requirements
Sec. 141.11(d) in Sec. 141.11(d)
allows NCWS to have to new Subpart Q,
nitrate levels requiring the PN to
above MCL> (10 mg/ follow Tier 1
l), up to 20 mg/l, notice requirements
if State approves and content
and if they post requirements in
and meet other Sec. 141.205;
conditions. changes Sec.
141.11(d) to cross
reference the
Subpart Q PN
requirement.
[[Page 25991]]
Public notice by primacy (Sec. 141.32(g)) (Sec. 141.210 ) No
agency (not in statute). The State may give change.
notice to the
public on behalf of
the public water
system if the State
complies with the
requirements of
Sec. 141.32.
However, the owner
or operator of the
public water system
remains legally
responsible.
1414(c)(2)(E) Administrator (Sec. 141.35(d)) (Sec. 141.207)
may require notice of Written notice of Revised to require
levels of unregulated availability of notice of
contaminants monitored results within availability of
under section 1445(a). three months after results within 12
system receives months, following
results (surface Tier 3 delivery
water systems only requirements;
need to notify deletes Sec.
after the first 141.35(d).
quarter of
monitoring).
1414(c)(2)(B) States may (Sec. 142.10(a)) (Sec. 142.10(a)) No
establish alternative Authority to change.
notification requirements. require public
water systems to
give public notice
that is no less
stringent than the
EPA requirements in
Secs. 141.32 and
142.16(a).
(Sec. 142.16(a)) If (Sec. 142.16(a))
the state chooses Deletes current
to decrease notice requirement. Allows
frequency for minor primacy agencies to
monitoring establish
violations it must alternative public
submit to EPA the notification
criteria used to requirements with
decide the respect to form and
decreased frequency content of notice,
and which consistent with
violations are 1414(c)(2)(B) of
minor, and it must 1996 SDWA
submit the new amendments, as long
notice requirements. as they provide
same type and
amount of
information.
New Sec.
142.16(a)(2) added
to require State to
include in primacy
program enforceable
requirements and
procedures when
State augments its
program to take
advantage of the
flexibilities built
into EPA's rule.
List of special
primacy
requirements
included in Sec.
142.16(a)(2).
------------------------------------------------------------------------
D. ``Plain Language'' Format of Final Rule
Today's Rule: As discussed in the preamble to the proposed rule,
EPA has formatted Subpart Q of these regulations in question-and-answer
format and made other changes in format and language, consistent with
the requirements outlined in the June 1, 1998 memorandum sent by
President Clinton to all Federal agencies, to take steps to improve
both the clarity and comprehension of regulatory language. The intent
of ``plain language'' is to produce rules which are clear, concise,
straight-forward, understandable, and enforceable without extensive
``legalese.'' The current public notification rule, in particular, has
been criticized by the General Accounting Office (GAO) and others as
being too complex and confusing to implement. This criticism was viewed
by GAO in its 1992 report as one of the reasons the public notification
process is ineffective.
Comments Requested on Proposal: EPA requested comment on the new
format and solicited ideas on ways to make the public notification
regulation more readable by the regulated community. In general,
commenters supported the new format, finding it a significant
improvement from the current rule.
EPA Response to Comments: The final rule is consistent with the
overall ``plain language'' strategy incorporated into the proposed
rule. EPA has made minor formatting and language changes in response to
specific comments that improve the overall presentation.
E. General Provisions of Final Rule (Sec. 141.201)
Today's final rule replaces the existing public notification
regulation with an entirely new subpart (40 CFR Part 141, Subpart Q),
which incorporates the new provisions under sections 1414(c)(1) and
(c)(2) of the SDWA, as amended in 1996. The final rule streamlines the
requirements to more effectively meet the objectives of the public
notification process. Today's final rule revises the existing public
notification requirements:
<bullet> To tailor the public notification requirements to address
the potential risk from the violations, with particular focus on the
notice for violations posing the greatest potential risk to public
health;
<bullet> To simplify the requirements and make them more self-
implementing, allowing water systems to understand and implement their
public notification obligation without further interpretation;
<bullet> To give greater latitude to States to develop alternative
programs to meet their unique needs and to provide greater flexibility
to public water systems to tailor distribution of the notice to best
reach persons served;
<bullet> To better integrate the public notification requirements
for less serious violations with the annual Consumer Confidence Report
(CCR) for community water systems and with other annual reporting
mechanisms for non-community water systems; and
<bullet> To reduce the burden on water systems of complying with
the public notification requirements.
1. Who Must Give Public Notice?
Today's Rule: The final rule under Sec. 141.201(a) requires owners
and operators of public water systems to give notice to persons they
serve for all violations of national primary drinking water regulations
(NPDWRs), when they are operating under a variance or exemption (or
violate conditions of the variance or exemption), and for waterborne
emergencies and other specified situations posing a potential risk to
public health. The violation categories and other situations requiring
a public notice are identified in the final rule in Table 1 to
Sec. 141.201 and Appendix A of Subpart Q.
[[Page 25992]]
The final rule makes several changes to the current public notice
regulatory language to improve the clarity and understanding of when a
public notice is required. Appendix A provides a complete reference
guide (including regulatory citations) to all violations and situations
requiring a public notice. Not all violations under the EPA drinking
water regulations require a public notice. For instance, public notices
are not required for violations of the reporting regulations under
Sec. 141.31 and other Part 141 sections. Public notices are also not
required for violations of the Consumer Confidence Report regulations
under Subpart O of Part 141. Appendix A will be updated as new NPDWRs
are promulgated or when other situations arise where a public notice is
required. A public notice is only required for the violations or other
situations listed in Appendix A.
Several other changes were made to Table 1 to Sec. 141.201 in
today's rule modifying the violations and situations requiring a public
notice:
<bullet> Special public notice provisions already required in the
current regulations, but not included in the current public
notification regulations under Sec. 141.32, are added to the list of
violations and situations requiring a public notice in Table 1 to
Sec. 141.201. These special public notice provisions include: The
notice requirements for exceedance of the fluoride secondary maximum
contaminant level (SMCL) under the existing Sec. 143.5; the requirement
to give notice of the availability of unregulated contaminant
monitoring results originally found under Sec. 141.35; and the public
notice required of non-community water systems under the current
Sec. 141.11(d) for exceedances of the MCL of 10 mg/l for nitrate (up to
20 mg/l) without receiving a violation. These changes are discussed in
Section IV.J of the preamble related to special public notices.
<bullet> The existing requirement to give notice for waterborne
disease outbreaks under the Surface Water Treatment Rule is broadened
and clarified to include a requirement for a public notice for any
waterborne disease outbreak and other waterborne emergencies. This
change is discussed in Section IV.F.1 of the preamble related to Tier 1
public notices.
<bullet> A new requirement is added that explicitly incorporates
additional public notice requirements as determined by the primacy
agency for other violations and situations not explicitly listed in
Appendix A of Subpart Q. This enables the primacy agency to broaden the
applicability of the public notice regulation to any situation it deems
important.
Comments Requested on Proposal: EPA asked for comment on the
proposal to add explicit regulatory language enabling the primacy
agency to require public notification for other situations it believes
have the potential for serious health risk. EPA also asked for comment
on its proposal to present in tabular form all the situations requiring
a public notice and its plans to update Appendix A as new rules are
published. In general, commenters strongly supported the addition of
Appendix A to the revised regulation and the flexibility explicitly
allowed the primacy agency to require public notices beyond those
listed in Appendix A.
EPA Response to Comments: The final rule is consistent with what
was proposed. Other than several minor formatting and wording changes
to improve the presentation, the only significant change to what was
proposed was to revise the proposed Table 1 to Sec. 141.201(a) to
conform to the changes made in other sections of the rule. Table 1 to
Sec. 141.201(a) now includes other situations requiring a Tier 1 notice
under Sec. 141.202(a) that were added in response to comments. These
changes to the Tier 1 requirements are discussed in Sections IV.F.1 and
IV.J of the preamble.
2. What Type of Public Notice Is Required for Each Situation?
Today's Rule: The final rule under Sec. 141.201(b) divides the
public notice requirements into three tiers:
<bullet> Tier 1 Public Notice, for violations and situations with
significant potential to have serious adverse effects on human health
as a result of short-term exposure;
<bullet> Tier 2 Public Notice, for other violations and situations
with potential to have serious adverse effects on human health; and
<bullet> Tier 3 Public Notice, for all other violations and
situations requiring a public notice not included in Tier 1 and Tier 2.
The form, manner, and frequency of the public notice is determined
by the tier to which the violation or situation is assigned. Appendix A
assigns each violation and situation to one of the three tiers. The
specific requirements for the public notice in each tier are defined
under Secs. 141.202, 141.203, and 141.204.
EPA is establishing the three-tier approach to public notification
to be consistent with the intent of the new public notification
provisions in the 1996 SDWA amendments. Section 1414(c)(2)(A) directs
the Administrator to issue regulations that provide for different
frequencies of notice based on the differences between intermittent and
persistent violations and the seriousness of any potential adverse
health effects. Section 1414(c)(2)(C) sets very specific requirements
for violations with the potential to have serious adverse effects on
human health from short-term exposure. This includes a new requirement
that such notices be distributed to persons served no later than 24
hours after the occurrence of the violation. Section 1414(c)(2)(D)
requires EPA to define in its regulations the notification procedures
for all violations not included under subparagraph (C). This section
requires that such procedures specify that the water system provide
written notice to each person served in either: (1) The first bill
prepared, if any, after the violation; (2) in an annual report issued
no later than one year after the violation; or (3) by mail or direct
delivery as soon as practicable, but no later than one year after the
violation.
Comments Requested on Proposal: EPA requested comment on whether a
two-or three-tiered structure would be more appropriate for the final
EPA regulation and what the advantages and disadvantages of the
preferred tier structure would be. All but three of the twenty
commenters supported the three-tier structure.
EPA Response to Comments: EPA made no changes in the final rule to
what was proposed under Section 141.201(b). In response to the three
commenters preferring a two-tier notice structure, EPA believes that a
three-tier approach is more appropriate than a two-tier approach
because it provides more effective tailoring of the public notice
requirements based on the seriousness of any potential health effects
and is still relatively simple and straightforward to implement.
Violations span a wide range of potential health risks. A ``middle-
tier'' public notice requirement between the 24-hour notice and the
annual notice is appropriate for those lower-tier violations and
situations that may have the potential for serious adverse effects on
human health, but are not significant or urgent enough to require an
emergency notice. EPA believes a three-tier system of public
notification effectively separates the form, manner, content, and
frequency of public notice based on the seriousness of any potential
adverse health effects. The three-tier system also meets the clear
objectives and purposes of public notification, is simple and
straightforward to implement, and meets the requirements of the
statute.
[[Page 25993]]
3. Who Must Be Notified?
Today's Rule: The final rule under Sec. 141.201(c) requires that
each public water system provide public notice to persons served by the
water system. EPA believes that consumers have a right to know in a
timely manner whenever violations occur that may affect them, to allow
them to make their own choices about using drinking water, based on
their own perceived risk. This is consistent with the statutory
requirement under the SDWA, which requires that public notice be
provided to ``the persons served by the system.'' (SDWA, Section
1414(c)(1)). In response to comments on the proposal, EPA in the final
rule has clarified the requirement in three ways.
First, EPA interprets the obligation of the water system to reach
persons served to extend beyond bill-paying customers and service
connections to all consumers of the system's drinking water. This is
defined in the final rule to require that water systems provide the
notice in a form and manner ``reasonably calculated to reach persons
served.'' EPA recognizes that reaching the persons served beyond the
bill-paying customers and service connections may pose a challenge to
some water systems. Some consumers (such as apartment dwellers, other
renters, university students, prison inmates, and condominium
residents) may not be the persons paying the water bill or be otherwise
linked to the service connection address. The form and manner of the
public notice necessary to reach all the persons served depends on the
local situation. To illustrate how EPA interprets the breadth of this
obligation, EPA has added examples in the rule language under
Secs. 141.202(c), 141.203(c), and 141.204(c) outlining what additional
efforts it expects of public water systems to reach persons other than
the bill-payers or the service connection addresses.
EPA has also added standard language under Sec. 141.205(d)(3) for
water systems to use in their public notices (where applicable) to
encourage those receiving the notice to distribute it to other persons
who may drink the water. Examples where the use of this standard
distribution language would apply include notices that are sent to
apartment and condominium managers, building managers or physical plant
superintendents, or others who receive the notice who provide drinking
water to others.
Second, language under Sec. 141.201(c)(a)(1) has been added to
define the public notice obligation of public water systems that sell
or otherwise provide drinking water to other public water systems.
These ``parent'' systems are responsible for providing public notice of
the violation or situation to the owner or operator of the
``consecutive'' systems to whom they sell water, but they are not
required under the rule to distribute the notice to persons served by
the consecutive system. Although different public notice arrangements
are sometimes made between the parent and consecutive system, the
consecutive system is the water system responsible under this rule for
delivering the notice to the persons it serves. Although the legal
obligation is clear under the rule, EPA recommends that each
consecutive water system in its contract with the parent system agree
on the most effective approach for distributing public notices. EPA
will give examples of such agreements in the Public Notification
Handbook.
Third, language under Sec. 141.201(c)(2) has been added to enable
the primacy agency, at its option, to make exceptions to the system-
wide notice requirement if specific regulatory criteria are met. The
new language will allow a water system to limit distribution of the
notice to those persons served by a portion of the distribution system
impacted by the violation, where the water system is able to
demonstrate that the affected portion of the system is physically or
hydraulically isolated from all other parts of the distribution system.
This replaces the more limited discretion given to primacy agencies in
the current rule, which allows less than system-wide notice for
violation of EPA's chemical standards only when the elevated
contaminant levels are contained in a separable portion of the
distribution system with no interconnections. Today's rule broadens the
allowable exceptions to a system-wide notice by adding ``hydraulically
isolated'' to the exception criteria. Although not open-ended, the
amended language recognizes situations other than physical separation
where there is clear and certain evidence that persons served by a
portion of the distribution system have no chance of being affected by
the violation.
To meet EPA's criterion that a portion of the distribution system
must be physically isolated to be eligible for an exception to the
system-wide notice requirement, a system must show the primacy agency
that the affected portion is separated from other parts of the
distribution system with no interconnections. Because of the physical
separation, the elevated contaminant levels contained in only that
portion of the system would have no bearing on the contaminant levels
in other parts of the system. In such a situation, EPA believes a
primacy agency may permit an exception to system-wide notice. These
exceptions to system-wide notice are already allowed in the current
rule for violations of the chemical standards under Secs. 141.23(i)(4),
141.24(f)(15)(iii), and (h)(11)(iii). Today's rule incorporates this
exception criteria into Sec. 141.201(c)(2).
To meet EPA's criterion that a portion of the distribution system
must be hydraulically isolated to be eligible for an exception to the
system-wide notice requirement, a system must show that the water in
the affected portion is separated from the water in all other parts of
the distribution system because the projected water flow patterns and
water pressure zones effectively isolate the water to that portion of
the system. This hydraulic isolation can result from the design of the
distribution system (e.g., pressure zones, backflow prevention devices)
or be created through system operation (e.g., flow control). An example
associated with the Total Coliform Rule is the presence of E. coli
downstream from a pipe break that the system can demonstrate, to the
satisfaction of the primacy agency, led to the entry of fecal
contamination, and that the water downstream from the break does not
flow into any other part of the distribution system. Another example,
related to a chemical standard (e.g., nitrate, fluoride), is a
situation where contaminant levels exceeding the MCL are shown to be
from a single source and found only in the distribution main leading
from that source. The water system in this situation may be eligible
for an exception if it could demonstrate, using other monitoring
information and distribution flow modeling, that exceedances above the
MCL could only be found in the single distribution main because of
water flow patterns and pressure zones (the ``hydraulics'') under all
operational scenarios. For both of these examples, the decision on
whether to permit an exception to the system-wide notice requirement
rests solely with the primacy agency.
Primacy agencies seeking authority to grant exceptions to the
system-wide notice requirement must meet the special primacy conditions
under Sec. 142.16(a)(2) in their approved primacy program. Decisions by
the primacy agency to permit exceptions must be in writing and
otherwise documented based on use of the regulatory criteria in today's
rule. EPA recognizes that there are other situations where the water
system has evidence that not all the
[[Page 25994]]
persons served by the system are affected equally by the violation. In
these situations, EPA expects the water system to tailor the language
in the public notice its sends system-wide, to communicate who is at
most risk from the violation and who is at minimal risk. All such
notices, unless the water system is granted an exception by the primacy
agency, are required to be distributed system-wide according to the
requirements in this part.
Comments Requested on Proposal: EPA asked for comments on its
interpretation of who must be notified under the SDWA and the proposed
rule. A substantial number of commenters recommended that EPA allow
exceptions to the proposed (and current) requirement that the notice go
to persons served by the entire system, particularly where it is clear
that only a portion of the persons served are affected by the
violation. Other commenters asked EPA to clarify how far the water
system must go to ensure that its notice reaches all persons served.
EPA Response to Comments: The final rule reaffirms the statutory
language that water systems provide the public notice to persons served
by the entire system. In response to comments, however, the final rule
now includes language enabling the primacy agency, at its option, to
make exceptions to the system-wide notice requirement where the
violation is shown to be due to exceedances in a portion of the system
that is physically or hydraulically isolated from the rest of the
system. EPA also added language in the final rule to respond to
requests that EPA clarify public notice responsibilities for persons
selling water to other water systems (i.e., ``consecutive systems'').
Several commenters requested that EPA change the distribution
requirement from ``persons served by the system'' to ``persons
affected,'' to allow less than system-wide notice where the available
evidence indicates that the violation affects only a portion of the
persons served by the system. EPA disagrees with changing the baseline
requirement to distribute notices of all violations system-wide,
because EPA strongly believes that consumers have a right-to-know in a
timely manner when violations occur that may affect them. In situations
where evidence indicates that not all persons served are affected
equally by the violation, EPA expects the water system to tailor the
language in the public notice to communicate who is at most risk and
what actions they should take, not to limit the notice distribution
based on relative risk. EPA does agree, however, that exceptions to the
system-wide notice distribution may be warranted when the contaminant
exceedances are shown to be contained exclusively in an isolated
portion of the distribution system. In such a situation, only those
persons served by that portion of the system are affected. Accordingly,
EPA has added language in the final rule allowing the primacy agency to
grant exceptions, at its option, where the violation is shown to be due
to exceedances in a portion of the system that is physically or
hydraulically isolated from the rest of the system.
Several other commenters gave examples of situations where they
believed a system-wide notice is unwarranted. EPA believes the language
added in the final rule effectively addresses these comments by
allowing exceptions to the system-wide requirement, at the primacy
agencies discretion, when the system can demonstrate that specific
engineering and hydraulic criteria are met. EPA's intent in adding the
language is explained earlier in this preamble section. EPA's detailed
response to specific comments on this provision is contained in the
``Response to Comments'' document contained in the docket for this
rule.
F. Form, Manner, and Frequency of the Tier 1 Public Notice: Violations
and Situations With Significant Potential to Have Serious Adverse
Effects on Human Health as a Result of Short-Term Exposure
(Sec. 141.202)
1. Tier 1 Violations and Situations
Today's Rule: The final rule under Sec. 141.202(a) requires a Tier
1 public notice for specific violation categories and other situations.
The list of violations requiring a Tier 1 public notice in today's rule
includes all violations in the current rule defined as posing acute
health effects. In addition, a number of new violations and situations
have been added to those already required under the current regulation.
Tier 1 notice requirements under the final rule are required for:
<bullet> Violation of the MCL for total coliform, when fecal
coliform or E. coli are present in the water distribution system, or
when the water system fails to test for fecal coliforms or E. coli
after any repeat sample tests positive for coliform. Failure to test
for fecal coliform or E. coli is not defined as an acute violation
requiring a 72-hour notice in the current rule.
<bullet> Violation of the MCL for nitrate, nitrite, or total
nitrate and nitrite, or when a water system fails to take a
confirmation sample within 24 hours of the system's receipt of the
first sample showing exceedance of the nitrate or nitrite MCL.
Violation of the total nitrate and nitrite MCL and the failure to take
a required confirmation sample are not defined as acute violations in
the current rule.
<bullet> Exceedance of the nitrate MCL by non-community water
systems (NCWSs), where permitted to exceed the MCL by the primacy
agency under the criteria established under Sec. 141.11(d). The
authority given by primacy agencies under Sec. 141.11(d) to allow NCWS
to exceed the MCL level of 10 mg/l (up to 20 mg/l) is unchanged by
today's action. The final public notification rule incorporates the
public notice requirements for qualifying NCWSs into a new special
public notice under Sec. 141.209. Qualifying NCWS must follow the Tier
1 notice requirements. This existing requirement is not explicitly
incorporated into the current public notice rule.
<bullet> Violation of the MRDL for chlorine dioxide, where one or
more samples taken in the distribution system the day following an
exceedance of the MRDL at the entrance of the distribution system
exceed the MRDL. A Tier 1 notice is also required when the water system
does not take required samples in the distribution system. These are
new Tier 1 notice requirements incorporated from the Stage 1 D/DBP rule
published on December 16, 1998 (63 FR 69390).
<bullet> Violation of the turbidity MCL under Sec. 141.13(b) or a
violation of the SWTR and IESWTR treatment technique requirements
resulting from a single exceedance of the maximum allowable turbidity
level, where the primacy agency determines after consultation initiated
by the water system that a Tier 1 public notice is required. Violations
resulting from exceedance of these turbidity limits will routinely
require a Tier 2 notice except where the primacy agency determines,
after consultation, that a Tier 1 notice is required for the specific
situation. The consultation requirement under Sec. 141.203(b)(3) is
triggered whenever these specific turbidity violations occur.
Consultation must take place as soon as practical but no later than 24
hours after the violation is known. If the water system is unable to
consult with the primacy agency within the 24-hour period, the public
notice requirement is automatically elevated to a Tier 1. Where the
notice requirement is elevated to a Tier 1, the public water system
must distribute the notice as soon as practical but no later than the
subsequent 24-hour period after the Tier 1 requirement is known (i.e.,
no later than 48 hours after the
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public water system first learns of the violation). This provision is
not included in the current rule.
<bullet> Occurrence of a waterborne disease outbreak, as defined in
Section 141.2, and other waterborne emergencies. This is an expanded
Tier 1 notice requirement from that required under the current rule,
which is limited to outbreaks related to violations of the Surface
Water Treatment Rule for unfiltered systems. Today's final rule adds an
explicit reference to Sec. 141.2 to clarify the definition of
waterborne disease outbreaks requiring a Tier 1 public notice. The
following definition of a waterborne disease outbreak is in Sec. 141.2:
Waterborne disease outbreak means the significant occurrence of
acute infectious illness, epidemiologically associated with the
ingestion of water from a public water system which is deficient in
treatment, as determined by the appropriate local or state agency.
Today's final rule also adds ``other waterborne emergencies'' to the
list of situations requiring a public notice. The definition of
``waterborne emergency'' is illustrated in the final rule by example,
but EPA's intent is to have the Tier 1 public notice requirement apply
to any waterborne emergency (whether a violation or not) with
significant potential to pose adverse health effects from short-term
exposure. The examples in the final rule to illustrate this include,
but are not limited to: Failure or significant interruption in key
water treatment processes, a natural disaster that disrupts the water
supply or distribution system, or a chemical spill or unexpected
loading of possible pathogens into the source water that significantly
increases the potential for drinking water contamination.
<bullet> Other violations or situations with significant potential
to have serious adverse health effects from short-term exposure, as
determined by the primacy agency. This enables the primacy agency to
elevate to Tier 1 other violations and situations not specifically
identified as requiring a Tier 1 notice in Appendix A, when necessary
to protect public health. The final rule allows the primacy agency to
elevate either violations or situations; the current rule applies only
to ``violations.''
EPA has limited its list of violations and situations routinely
requiring a Tier 1 notice to those with a significant potential for
serious adverse health effects from short-term exposure. There are
other serious violations which may indicate a potential for adverse
health effects from short-term exposure in specific circumstances. But
EPA did not designate these other violations as automatically requiring
a Tier 1 notice because they represent exceedances of indicator
parameters which are not strongly or consistently linked to the
occurrence of the possible acute health effects. Most routine Total
Coliform Rule (TCR) MCL violations and Surface Water Treatment Rule
(SWTR) TT violations would fall into this category. These violations
are included in the Tier 2 list. EPA believes focusing the 24-hour
notice requirement in its rule on the more limited set of violations
will increase the effectiveness of the Tier 1 notices and lead to
greater health protection. When a specific violation or situation
clearly warrants a Tier 1 notice based on the strength of the evidence,
EPA expects the primacy agency to use its discretion to elevate the
notice requirement to Tier 1. Use of this discretion is authorized
under the final EPA rule to ensure that the public is effectively
informed of these violations and situations not explicitly listed by
EPA as requiring a Tier 1 notice.
EPA decided to include violations resulting from exceedance of the
maximum allowable turbidity limit in its Tier 1 list of violations
under Table 1 to Sec. 141.202, but Tier 1 would only apply when the
primacy agency directs such a notice after consultation with the public
water system. This was because EPA believes that violations resulting
from an exceedance of the maximum allowable turbidity limit may be an
indicator that there is significant potential of adverse health effects
from short-term exposure. There is a strong possibility of serious
consequences to public health if the public is not alerted quickly when
pathogens have passed through to the drinking water. However, EPA does
not believe that all such turbidity excursions should prompt a Tier 1
notice, thus justifying a new requirement that the system consult with
the primacy agency within 24 hours to determine whether the specific
situation warrants a Tier 1 notice. Requiring immediate consultation
with the primacy agency will ensure that Tier 1 notices will be
required when supported by the evidence. Requiring consultation rather
than an automatic Tier 1 notice also avoids unnecessary and costly
notices. When consultation with the primacy agency does not occur
within 24 hours, the final rule automatically requires that a Tier 1
notice be distributed.
EPA expects that some of the routine violations related to
turbidity exceedances should require a Tier 2 (not a Tier 1) notice
because a turbidity exceedance by itself, without other supporting
information, has not been shown to date to be a predictable indicator
of a pathogen loading in the finished water. A single exceedance of the
maximum allowable turbidity limit, although a violation, may also prove
to be a false reading because of a testing equipment malfunction. EPA
is continuing research on turbidity as an indicator of pathogen loading
as part of the development of the Long Term Enhanced Surface Water
Treatment Rule. Given the relatively small number of single exceedance
turbidity violations (estimated at less than 200 per year), the
additional primacy agency workload for consultation should not be
overly burdensome. The final rule provides the best balance between
getting a notice out quickly to protect public health and avoiding
unnecessary alarm and confusion through issuance of unnecessary
notices.
Comments Requested on Proposal: EPA requested comment on its
proposed list of violations and situations requiring Tier 1 public
notification. EPA received a range of comments recommending changes to
the proposed list.
First, many commenters specifically focused on those proposed Tier
2 violations which may in some circumstances pose a significant and
immediate risk from short-term exposure, specifically violations of the
TCR and SWTR/IESWTR. In particular, over half of these commenters
recommended that turbidity excursions resulting in a violation be
automatically elevated to a Tier 1 notice because they believed that
turbidity violations were more often than not a strong indicator of
harmful drinking water posing a significant risk from short-term
exposure. The rest of those commenting on this issue specifically
supported leaving all turbidity violations in Tier 2 (as was proposed)
because they believed that turbidity violations were more often than
not a false indicator of potential health risk. Virtually all the
commenters agreed that turbidity was useful as an indicator to trigger
immediate follow-up by the water system.
Second, commenters asked EPA to be more precise in defining which
violations or situations required a Tier 1 notice. In particular,
commenters asked EPA to better define when EPA intended a Tier 1 notice
to be triggered for a waterborne disease outbreak, to clarify when
failure to test for fecal coliform required a Tier 1 notice, and to
better specify which chlorine dioxide violations required a Tier 1
notice.
Third, several commenters requested that EPA provide more explicit
criteria for when EPA intended for the primacy agency to elevate other
violations and
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situations not explicitly listed in the EPA rule to a Tier 1 notice.
EPA Response to Comments: The final rule reflects several
substantive changes to what EPA proposed, based on comments received on
the proposal. In response to comments recommending that the proposal be
changed to require that all TCR MCL violations and all SWTR TT
violations require a Tier 1 notice because of their potential risk from
short-term exposure, EPA decided to stay with the Tier 2 requirement as
proposed. EPA believes that an automatic Tier 1 notice requirement is
not justified because routine TCR and SWTR violations (without
supporting evidence) are not sufficiently strong or predictable
indicators of significant potential of risk from short-term exposure.
Routine TCR violations with no evidence of fecal contamination clearly
do not provide sufficient evidence indicating significant potential of
short-term health risk. Routine violations of the treatment technique
requirements under the SWTR and IESWTR do provide an indication of
problems with disinfection or filtration treatment, but they are not in
themselves sufficient evidence indicating significant potential of
short-term health risk.
In response to the range of comments related to the appropriate
tier level for turbidity violations, EPA agrees that certain
exceedances of the turbidity limit deserve special attention in the
final rule. Accordingly, EPA has added language in the final rule
addressing this specific situation. For the reasons outlined earlier in
this section, the final rule: Continues to classify all turbidity
violations as Tier 2; adds a new requirement that PWSs consult with
their primacy agency within 24 hours when exceedances of the maximum
allowable turbidity limit occur; enables the primacy agency after the
consultation to elevate specific turbidity violations to Tier 1 when
warranted; and requires an automatic Tier 1 notice when consultation
does not take place within the 24-hour period. Since the significance
of the risk to health of an exceedance of the turbidity limit is
situational, EPA believes the final rule ensures that Tier 1 notices
will go out quickly when necessary (based on the immediate consultation
requirement) while avoiding unnecessary notices where the violation
poses no risk to health.
In response to comments asking that EPA clarify the violations and
situations requiring a Tier 1 notice, EPA agrees and has added language
in Table 1 to Sec. 141.202 of the final rule to more precisely define
when a Tier 1 notice is required. In response to specific comments, EPA
also added several new Tier 1 categories to Table 1 to ensure that
Table 1 accurately and completely lists all the violations and
situations where a Tier 1 notice is required. In addition, the final
Table 1 list incorporates two existing public notice requirements not
explicitly referenced as Tier 1 requirements under the proposal: The
notice required under Sec. 141.11(d) for those NCWS allowed by the
primacy agency to exceed the nitrate standard; and the notice required
under Sec. 141.23(f)(2) when a system fails to take a nitrate
confirmation sample after the initial sample showed an exceedance of
the MCL. These changes incorporated existing requirements currently
found in other sections of the CFR. Finally, changes were made in the
final rule language to broaden the definition of waterborne disease
outbreak by adding other waterborne emergencies and making minor
changes in the language related to failure to test for fecal coliform
and chlorine dioxide violations to clarify when the Tier 1 notice is
required.
In response to comments asking for more explicit criteria to guide
primacy agencies on when to elevate other violations and situations to
the Tier 1 list, EPA has decided not to specify additional criteria in
the final rule. EPA believes that the primacy agency needs wide
latitude to access individual situations based on the regulatory
definition of the Tier 1 notice under Sec. 141.201(b). EPA also
encourages public water systems to use the Tier 1 notice protocols
whenever a violation or situation has significant potential to pose
adverse health effects from short-term exposure. Since time is of the
essence to protect public health in such situations, public water
systems should act quickly to notify persons served, without waiting
for direction from the primacy agency. EPA will shortly be issuing the
final Public Notification Handbook and the Public Notification Primacy
Guidance, which will offer examples of other situations where it
believes a Tier 1 notice may be necessary.
2. Timing of the Tier 1 Public Notice (and Consultation Requirement)
Today's Rule: The final rule under Sec. 141.202(b) requires that a
Tier 1 public notice be provided by the public water system as soon as
possible but no later than 24 hours after the system learns of the
violation. The public water system is also required to initiate
consultation with the primacy agency within that same 24-hour period
and comply with whatever subsequent public notification requirements
are established during that consultation.
The timing and process established for the Tier 1 public notice in
the final rule is significantly different from the current rule.
<bullet> First, the public water system is required to distribute
the notice within 24 hours (as required under Section 1414(c)(2)(C)(i)
of the SDWA), rather than within 72 hours required in the current rule.
This is a statutory obligation for such violations under the 1996 SDWA
amendments. EPA interprets the statute under Section 1414(c)(2)(C)(i)
to require this initial public notice within the first 24 hours to
apply regardless of when the consultation with the primacy agency takes
place.
<bullet> Second, the final rule sets a new requirement that the
water system consult with the primacy agency to determine subsequent
public notification requirements. EPA interprets the statute under
Section 1414(c)(2)(C)(iii) and (C)(iv) to require that the public water
system consult with the primacy agency within the first 24 hours after
the violation becomes known to the water system, to determine
subsequent public notice requirements (e.g., repeat notice frequencies,
form and manner of subsequent notice, etc.). In contrast, the current
rule sets the subsequent public notice requirements in the rule itself,
rather than on a case-by-case basis as a result of consultation with
the primacy agency.
The final rule identifies a number of elements which may be covered
during the consultation, including the timing, form, manner, frequency,
and content of subsequent notices, the duration of the notice when
posted, and other actions reasonably calculated to ensure the notice is
provided to persons served. Additional notices may be necessary to
reach other persons served who may not have seen the initial notice and
to reaffirm the seriousness of the public health risk from drinking the
water. EPA also believes, but does not require in the final rule, that
a supplemental notice to announce that the violation has been resolved
and the risk from the drinking water has been abated is an effective
way to bring closure to the emergency situation. The decision on when
to require subsequent notices can best be handled by the primacy agency
on a case-by-case basis in consultation with the public water system.
Comments Requested on Proposal: EPA requested comment on the new
requirement for a 24-hour notice for Tier 1 public notices and the new
consultation process within the same