Potential SBAR Panel: National Primary Drinking Water Regulations: Microbial and Disinfection Byproducts Rulemaking Revisions

What is the Implication of the Proposed Rulemaking on Small Entities?

The Safe Drinking Water Act (SDWA) requires the U.S. Environmental Protection Agency (EPA) to conduct a review every six years of existing national primary drinking water regulations (NPDWRs) and determine which, if any, are appropriate for revision. The purpose of the review, called the Six-Year Review, is to evaluate available information for regulated contaminants to determine if any new information on health effects, treatment technologies, analytical methods, occurrence, exposure, implementation and/or other factors provides a basis to support a regulatory revision that would improve or strengthen public health protection. Under SDWA, each revised NPDWR shall maintain, or provide for greater, protection of the health of persons.

In January 2017 (82 FR 3518), EPA announced the review results for the Agency’s third Six-Year Review of NDPWRs and identified eight NPDWRs as candidates for revision. The eight candidates are chlorite, Cryptosporidium, haloacetic acids, heterotrophic bacteria, Giardia lamblia, Legionella, total trihalomethanes, and viruses. These eight candidates are regulated through the microbial and disinfection byproducts (MDBP) rules, which are a series of interrelated regulations that address risks from microbial pathogens and disinfectants/disinfection byproducts (DBPs) in drinking water. The MDBP rules include Stage 1 and Stage 2 Disinfectants and Disinfection Byproducts Rules (D/DBPRs); Surface Water Treatment Rule (SWTR); Interim Enhanced Surface Water Treatment Rule (IESWTR); and Long-Term 1 Enhanced Surface Water Treatment Rule (LT1).

These rules are a series of interrelated regulations that protect drinking water from microbes, disinfectants, and/or DBPs. The rule revisions are intended to improve public health protection from contaminants relevant to these MDBP rules and, where possible, reduce the regulatory burden while maintaining or improving public health protection. Revisions to the SWTRs would further reduce exposure to microbial pathogens including Cryptosporidium, Giardia lamblia, Legionella, and viruses in drinking water, which have been linked to diseases including gastrointestinal illness (such as diarrhea, vomiting, and cramps) and Legionnaire's Disease. Revisions to the D/DBPRs would further limit exposure to DBPs, which can form in water when disinfectants used to control microbial pathogens react with natural and human-caused materials found in source water and have been linked to adverse health outcomes.

EPA anticipates evaluating the MDBP rules for potential changes (hereafter referred to as the rule revisions), including but not limited to additional preventive and corrective measures to protect and improve drinking water quality; improving MDBP rule implementation and compliance; easing the regulatory burden; and providing tools and best practices to reduce risks from contaminants relevant to the MDBP rules. In considering potential revisions, EPA plans to consider balancing the risks between microbes and DBPs, and between different groups of DBPs. Using the NDWAC’s Letter to the Administrator and accompanying workgroup report on Potential Rule Revisions to inform EPA direction and priorities, areas for proposed revisions that EPA is considering may include:

• setting a numeric disinfection residual;
• evaluating precursor control enhancements;
• improving water quality for consecutive systems;
• evaluating potential improvement to monitoring and reporting requirements; and
• addressing finished water storage tank inspection and cleaning vulnerabilities as necessary.

For the NDWAC’s Letter to the Administrator that includes the full list of recommendations, please visit here EPA's NDWAC webpage, Letters of Recommendations to the EPA Administrator from NDWAC.

At this time, EPA has not determined if the proposed NPDWR rule revisions will have significant economic impacts on a substantial number of small public water systems (PWSs); however, because EPA may determine that the proposed rule revisions may have significant economic impacts on a substantial number of small PWSs after conducting future analyses, we have elected to move forward with preparing for a potential Small Business Advocacy Review (SBAR) panel process at this time.

An NPDWR applies to a PWS. A PWS provides water for human consumption through pipes or other constructed conveyances to at least 15 service connections or serves an average of at least 25 people for at least 60 days a year. A PWS may be publicly or privately owned. EPA defines three types of PWSs:

• Community Water System (CWS): A PWS that supplies water to the same population year-round.
• Non-Transient Non-Community Water System (NTNCWS): A PWS that regularly supplies water to at least 25 of the same people at least six months per year. Some examples are schools, factories, office buildings, and hospitals which have their own water systems.
• Transient Non-Community Water System (TNCWS): A PWS that provides water in a place such as a gas station or campground where people do not remain for long periods of time.

For purposes of assessing the impacts of the proposed rule revisions, EPA considers small entities to be PWSs serving 10,000 or fewer people. Under the SWTRs and the D/DBPRs, any of the proposed rule revisions would apply to PWSs subject to the rule requirements, including those serving fewer than 10,000 people. By definition, systems with populations smaller than 25 people or fewer than 15 service connections are not considered PWSs and are therefore not subject to SDWA requirements. The D/DBPRs and SWTRs collectively affect all three types of PWS and are subject to the rule requirements. The D/DBPRs apply to both surface and groundwater CWSs and NTNCWSs that add disinfectant to the drinking water during any part of the treatment process, as well as to TNCWSs that add chlorine dioxide. The SWTRs apply to all PWSs using surface water sources or ground water sources under the direct influence of surface water (GWUDI).

Additional information about the MDBP rule revisions is available on the EPA’s web site, Potential Revisions of Microbial and Disinfection Byproducts Rules.

What is a Small Business Advocacy Review Panel?

The EPA expects to conduct a Small Business Advocacy Review (SBAR) Panel for the development of a proposed rulemaking revisions that proposes and, as appropriate, will take final action on revisions to one or more of the current Microbial and Disinfection Byproducts (MDBP) NPDWRs: Stage 1 and Stage 2 Disinfectants and Disinfection Byproducts Rules (D/DBPRs); Surface Water Treatment Rule (SWTR); Interim Enhanced Surface Water Treatment Rule (IESWTR); and Long-Term 1 Enhanced Surface Water Treatment Rule (LT1).

The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA) requires the EPA to convene an SBAR Panel for a proposed rule unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Panel process offers an opportunity for potentially directly regulated small businesses, small governments, and small not-for-profit organizations (collectively referred to as small entities) to provide advice and recommendations to ensure that EPA carefully considers small entity concerns regarding the impact of the potential rule on their companies, governments, or organizations. The Panel itself is comprised of federal employees from the EPA, the Office of Management and Budget’s (OMB’s) Office of Information and Regulatory Affairs (OIRA), and the Office of Advocacy in the Small Business Administration (SBA). Small Entity Representatives (SERs) provide advice and recommendations to the Panel. SERs are owners or operators of small businesses, small organization officials, or small government officials of potentially regulated small entities. Other representatives, such as trade associations that exclusively or at least primarily represent potentially regulated small entities, also may serve as SERs. These other representatives are evaluated on a case-by-case basis.

To learn more, review EPA’s Frequent Questions for Small Entities web page.

How Can I Get Involved?

If you are a small PWS serving 10,000 or fewer people that may be directly subject to this rule, you are eligible to serve as a SER. As mentioned above, other representatives that exclusively or at least primarily represent potentially regulated small entities may also serve as SERs. The role of a SER is to provide advice and recommendations to ensure that the Panel carefully considers small entity concerns regarding the impact of the potential rule on their organizations.

You may nominate yourself to serve as a SER by following the directions in the next section. Depending on the volume of responses, the EPA may not be able to invite all eligible candidates to participate as SERs. Generally, SERs will be asked to review background information, listen to informational briefings, and provide oral and written advice and recommendations to the Panel. At least one virtual or in-person meeting is typically held with the SERs in Washington, DC with a toll-free conference line provided.

To qualify as a SER you must:

• Be a PWS serving 10,000 or fewer people AND expect to be directly subject to requirements of the proposed rule; or
• Exclusively represent or at least primarily represent potentially regulated small entities (e.g., a trade association that exclusively or primarily represents small PWSs). Nominees such as these will be evaluated on a case-by-case basis.

Who Should I Contact?

Individuals who are interested in potentially serving as a SER should send an email message to [email protected] by no later than August 23, 2024. In the message, please provide:

• Your name
• Name of your PWS
• Number of people served by your PWS
• If you are with a group such as a trade association that represents small PWSs, please provide the percent of your members that qualify as small PWS, and a qualitative statement describing how your group can truly represent only the unique interests of your members that qualify as small entities
• Address
• Contact information (including phone number and email address)
• Use this as the subject line of your email: SER Self-Nomination for MDBP NPDWRs Rulemaking Revisions

Please remember: Depending on the volume of responses, EPA may not be able to invite all qualified candidates to participate as SERs.