Primacy Enforcement Responsibility for Public Water Systems

The Safe Drinking Water Act (SDWA) requires EPA to establish and enforce standards that public drinking water systems must follow, including:

• Maximum contaminant levels or treatment techniques
• Monitoring and reporting requirements

EPA delegates primary enforcement responsibility (also called primacy) for public water systems to states and Indian Tribes if they meet certain requirements. EPA recently released revisions to the primacy requirements. 

Applicable law, regulations, and guidance 

• Safe Drinking Water Act, 1974, as amended in 1986 and 1996
• Primacy Regulations 40 CFR Part 142, Subpart B, 1976, as amended in 1986
• State Programs Priority Guidance (1992)
• Revisions to Primacy Requirements (1998), 63 FR 23362 codified at 40 CFR Part 142

Requirements for state primacy (from 40CFR142, Subpart B)

The state must:

• Have regulations for contaminants regulated under the National Primary Drinking Water Regulations (NPDWRs) that are no less stringent than the regulations promulgated by EPA. States have up to two years to develop regulations after EPA releases new regulations
• Have adopted and be implementing procedures for the enforcement of state regulations
• Maintain an inventory of public water systems in the state
• Have a program to conduct sanitary surveys of the systems in the state
• Have a program to certify laboratories that will analyze water samples required by the regulations
• Have a laboratory that will serve as the state's "principal" lab that is certified by EPA
• Have a program to ensure that new or modified systems will be capable of complying with state primary drinking water regulations
• Have adequate enforcement authority to compel water systems to comply with NPDWRs, including:
  • authority to sue in court
  • right to enter and inspect water system facilities
  • authority to require systems to keep records and release them to the state
  • authority to require systems to notify the public of any system violation of the state requirements
  • authority to assess civil or criminal penalties for violations of the State Primary Drinking Water Regulations and public notification requirements
• Have adequate recordkeeping and reporting requirements.
• Have adequate variance and exemption requirements as stringent as EPA's, if the state chooses to allow variances or exemptions
• Have an adequate plan to provide for safe drinking water in emergencies like a natural disaster
• Have adopted authority to assess administrative penalties for violations of its approved primacy program

Revisions to primacy requirements;

This regulation, Revisions to State Primacy Requirements to Implement Safe Drinking Water Act Amendments ("primacy rule"), explains the changes made to §§1401(4) and 1413 of the SDWA by the 1996 Amendments.

The rule amends the regulations in 40 CFR Part 142 that set forth the requirements and process for states to obtain and/or retain primary enforcement authority (primacy) for the Public Water System Supervision (PWSS) program.  The rule also adds the expanded "public water system" (PWS) definition along with several other definitions in 40 CFR Parts 141 and 142.

• Federal Register Notice on "Revisions to State Primacy Requirements to Implement Safe Drinking Water Act Amendments; Final Rule"

For consistency with the amendments to §1413, the primacy rule makes the following changes to the existing regulations:

• Requires that states, as a condition of primacy, have administrative penalty authority for all violations of their approved primacy program, unless prohibited by the state constitution
• Increases the time for a state to adopt new or revised federal regulations from 18 months to two years
• Grants primary enforcement authority to states while their applications to modify their primacy programs are under review
• Adds examples of circumstances that require an emergency plan for the provision of safe drinking water

For consistency with the amendments to §1401(4), this rule makes the following specifications:

• Expands the definition of a PWS to include not only systems which provide water for human consumption through pipes, but also systems which provide water for human consumption through "other constructed conveyances"
• Codifies the statutory means by which certain water suppliers may be excluded from PWS classification

The primacy rule was published as a final rule without any notice or comment period because it is a direct codification and interpretation of the Safe Drinking Water Act. Under the Administrative Procedure Act, rules that fall within the interpretative statement exception in §553(b)(3)(A) are not subject to the rulemaking notice and comment requirements. Thus, EPA had "good cause" to publish this document as a final rule.