Legal Deadlines: The SDWA requires EPA to add new public notification requirements for violations posing a serious adverse effect on human health but imposes no legal deadline. EPA proposed the rule in the May 13, 1999, Federal Register (64 FR 25963).

Current Status and Near-Term Action: EPA finalized the Public Notification Handbook in late June. EPA developed the Handbook in cooperation with the Association of State Drinking Water Administrators (ASDWA) to assist water systems and states in implementing the new rule. In the handbook, templates for notices and other aids to help water systems develop notices for violations will be provided. A copy of the final Handbook will be sent to AMWA members once copies are received from EPA which are expected in early August.

Background: The Final Public Notification Rule was published in the Federal Register on May 4, 2000. A pre-publication copy of the rule was sent to members in Bulletin 00-08.

This new rule is intended to:

• require faster public notification in emergencies and fewer notices overall;
  
• result in notices that better communicate the potential health risks from drinking water violations and how to avoid such risks;
  
• enable water systems to better target notices based on the risks; and,
  
• make the process less burdensome for water suppliers and easier for consumers to understand.

The new requirements do not apply to water systems in states with primacy programs until two years from publication, unless states choose to adopt the new requirements earlier. However, water systems in Wyoming, Washington, D.C., and tribal lands, where EPA directly implements the drinking water programs, must comply with the new requirements 180 days after publication.

The following are the major changes to the public notification requirements based on this new rule:

• 24-hour notice. Water systems are required to distribute notices within 24 hours (the previous requirement was 72 hours) for violations posing health risks due to short-term exposure (i.e., a Tier 1 violation).
  
• Consultation requirement. Water systems must consult with the state or EPA within 24 hours of a Tier 1 violation to receive direction on subsequent requirements.
  
• 30-day notice for other serious violations. The notice deadline for violations of maximum contaminant levels or treatment techniques which do not pose an immediate threat to human health is extended from 14 to 30 days, with possible extension to 3 months (i.e., a Tier 2 violation).
  
• 12-month notice for non-serious violations. The notice deadline for all other violations is extended from 3 to 12 months, allowing a single annual report where applicable (i.e., a Tier 3 violation). Systems may choose to include this notice in their annual Consumer Confidence Reports (CCR).
  
• Simplified standard language. The existing standard health effects language is simplified, consistent with the CCR requirements. New standard language is now required for monitoring violations.
  
• Reduced number of notices. Formerly, water systems were required to use specific multiple delivery methods when distributing notices. Water systems now have the flexibility to chose the delivery method that will reach their customers best, even if that is a single method.

The proposed Public Notification Rule was provided to all AMWA members with Bulletin 99-24. The comment period closed July 12, 1999.

The following is a summary of the major requirements from the proposed rule:

• Public Notification requirements would fall into three tiers:

  - Tier 1 for violations and situations with significant potential to have serious adverse effects on human health as a result of short-term exposure. Notice is required within 24 hours of the violation.

  - Tier 2 for other violations and situations with potential to have serious adverse effects on human health. Notice is required within 30 days, with extension up to three months at the discretion of the state or primacy agency.

  - Tier 3 for all other violations and situations requiring a public notice not included in Tier 1 and Tier 2. Notice is required within 12 months of the violation, and may be included in the Consumer Confidence Report at the option of the water system.

• In general, Tier 1 violations would include violation of standards based on acute health effects such as: a waterborne disease outbreak; violation of the MCL for total coliforms when fecal coliform or E. coli are present; violation of the MCL for nitrate, nitrite, or their combination; or violation of the MRDL for chlorine dioxide. Tier 2 would include all MCL, MRDL, and treatment technique violations not falling under Tier 1. Tier 3 would include minor violations such as minor monitoring oversights, or operating under a variance or exemption.
  
• The form, manner and frequency of the public notification would be keyed to the tier to which the violation is assigned.

Legal Deadlines: There are no legal deadlines associated with these rules. EPA developed these rules to evaluate EPA's and states' implementation of their TMDL responsibilities.

Current Status and Near-Term Action: EPA published a final TMDL rule in the Federal Register on July 13, 2000. EPA Administrator Carol Browner signed the rule on July 11 just two days before a bill blocking the rule was signed into law by the President. With Browner's signature, the rule has become part of the U.S. Code, which means states are obligated to comply with it, regardless of whether EPA has enforcement powers. A copy of the rule and a fact sheet was sent to members in Bulletin 00-19.

The final TMDL rule addresses several issues that are relevant to drinking water suppliers including the following:

• The definition of "pollutant" will not include regulated drinking water contaminants as originally proposed. However, in the preamble, EPA interprets the Clean Water Act definition of pollutant to include, in most cases, drinking water contaminants that are regulated under the Safe Drinking Water Act.
  
• The final rule retains the requirement that states consider source water assessments conducted under the SDWA requirements when developing a list of impaired waterbodies. EPA decided to promulgate this section as proposed based on the rationale that states must consider all existing and readily available water quality-related data in the listing process. However, states may decide not to use certain data as a basis for listing waters.
  
• In the final rule, EPA requires states to identify waterbodies "that are designated in water quality standards as a public drinking water supply, or are used as a source of drinking water, and are impaired by a pollutant that is contributing to a violation of a national primary drinking water regulation by a public water system or causes a public water system to be vulnerable to a violation of a drinking water regulation."
  
• In the final rule, EPA has removed the proposed prioritization of waterbodies (i.e., high, medium, and low) and has instead included a requirement that states provide EPA with a prioritized schedule for establishing TMDLs based on "priority factors." The priority factors include waterbodies used as drinking water sources. The final rule does not require that an impairment at a public drinking water supply be listed as an automatic high priority. Rather, the state may give these waterbodies a lower priority if the state explains why this is appropriate.
  
• EPA declined to direct states to include "threatened" waters on the section 303(d) impaired stream lists. However, EPA has told AWMA that it believes that the final rule provides states with the option to include threatened waterbodies on their section 303(d) lists and establish TMDLs for these waterbodies. According to EPA, if those waterbodies which demonstrate a declining trend in water quality do not meet water quality standards at the time of the next listing cycle, then they would be listed and TMDLs prepared for them. Thus, EPA believes that states will have an incentive to adopt controls that address threatened waterbodies in an effort to avoid having to develop TMDLs for these waterbodies.

Background: EPA proposed the following rules in the Federal Register on August 23, 1999: Proposed Regulatory Revisions to the Total Maximum Daily Load (TMDL) Program and Associated Proposed Regulatory Revisions to the National Pollutant Discharge Elimination System (NPDES) and the Water Quality Standards Programs. The comment period ended on January 20, 2000.

AMWA submitted comments endorsing EPA's efforts to clarify and strengthen the current regulatory requirements for establishing TMDLs to apply to drinking water sources. A copy of the comments is attached to this month's report. Specifically, AMWA supported the inclusion of contaminants regulated by the SDWA in the definition of "pollutant" for the purposes of developing TMDLs. This will help focus attention on contaminants that the CWA currently overlooks in many cases. Also, AMWA requested that EPA give a high priority to waterbodies where pollutants contribute to violations of MCLs and force drinking water systems to install costly treatment to avoid these violations. And in response to EPA's proposal to only "encourage" states to consider nonpoint sources of pollution when developing impaired or threatened waterbody lists, AMWA called on EPA to establish equitable controls for both point and nonpoint sources of pollution.

These two rules were proposed by EPA to revise, clarify, and strengthen the current regulatory requirements for identifying impaired waters and establishing TMDLs under Section 303(d) of the Clean Water Act and revising the NPDES and Water Quality Standards regulations to facilitate implementation of TMDLs.

These proposed regulatory revisions address issues related to pollution in the nation's waters. EPA expects that the listing of impaired and threatened waters and establishing TMDLs are tools for identifying sources of water pollution and achieving water quality goals. EPA intends that clean-up plans will be developed that are consistent with the regulatory proposals and will restore thousands of miles of river and shorelines.

The purpose of the proposed regulations is to provide states with clear, consistent, and balanced direction for listing waters and developing TMDLs. These objectives would be accomplished by clarifying and revising the existing regulations. The types of changes include but are not limited to:

• Ensure that state 303(d) listing methodologies are more specific, subject to public review, and submitted to EPA for review.
  
• Establish a new format for state 303(d) lists that will create a more comprehensive list of waterbodies impaired and threatened by pollution and pollutants.
  
• Include a new requirement that states establish and submit to EPA schedules for establishing TMDLs.
  
• Ensure that states establish TMDLs for high priority waterbodies.
  
• Include a new requirement that states assign a high priority to waterbody and pollutant combinations which are designated as public drinking water supplies and which cause a violation of the maximum contaminant level.
  
• Clarify the elements that a TMDL must contain.
  
• Include a new requirement that an approvable TMDL must have an implementation plan consisting of required elements.
  
• Clarify that TMDLs may be expressed in terms appropriate to the desired condition of the waterbody or the characteristics of the pollutant load.
  
• Ensure that the public will be notified and have the opportunity to comment on lists, priority rankings, schedules, and TMDLs prior to submission to EPA.
  
• Allow the public to petition EPA to establish TMDLs where a state has substantially failed to do so consistent with the state's schedule.

The purpose of the proposed revisions to the NPDES and water quality standards regulations is to achieve reasonable progress toward attainment of water quality standards in impaired waterbodies after listing and pending TMDL establishment, and to provide reasonable assurance that TMDLs, once completed, will be adequately implemented. A copy of the proposed rule was forwarded to AMWA members with Bulletin 99-34.

Legal Deadlines: EPA must promulgate a Ground Water Rule by May 2002.

Current Status and Near-Term Action: The proposed Ground Water Rule was published in the Federal Register on May 10, 2000. EPA extended the comment period by 30 days to August 9, 2000. Please submit comments to AMWA by July 25 for inclusion in the Association's comments.

On April 17, the EPA announced the signing of the Proposed Ground Water Rule. The EPA said that the rule was designed to protect ground water sources of public drinking water supplies from disease-causing viruses and bacteria. In general, the rule is intended to strengthen monitoring, prevention, inactivation, and removal of microbial contaminants in ground water systems.

The rule applies to public ground water systems and to systems that mix surface water and ground water if the ground water is added directly to the distribution system and provided to consumers without treatment. This ostensibly includes untreated stand-alone ground water wells and untreated ground water plants that have their own entry points to the distribution system as well as untreated ground water blended with treated surface water prior to the entry point to the distribution system. Treatment in this case is defined as 4-log inactivation/removal of viruses.

The specific requirements proposed in the rule include the following:

• System sanitary surveys conducted by the state and identification of significant deficiencies.

  - Applies to all ground water and mixed surface water/ground water systems.

  - Includes the identification of "significant deficiencies" (i.e., those that require corrective action).

• Hydrogeologic sensitivity assessments for undisinfected systems.

  - Applies to all untreated ground water and mixed surface water/untreated ground water systems.

  - Includes the identification of aquifers as "sensitive" to microbial contamination.

• Source water microbial monitoring by systems that do not disinfect and draw from hydrogeologically sensitive aquifers or have detected fecal indicators within the system's distribution system.

  - Applies to all untreated ground water and mixed surface water/untreated ground water systems that: 1) are considered hydrogeologically "sensitive," or 2) have contamination in their distribution system (based on total coliform sampling under the Total Coliform Rule).

  - Routine monitoring is required when hydrogeologically sensitive (sampling monthly for 12 months).

  - Triggered monitoring is required if a total coliform positive sample is found in the distribution systems (one ground water source sample for a fecal indicator).

• Corrective action by any system with significant deficiencies or positive microbial samples indicating fecal contamination.

  - Applies to ground water systems and mixed surface water/ground water systems that have a "significant deficiency" or have detected a fecal indicator in their ground water source.

  - The significant deficiencies must be corrected in 90 days or treatment is required (i.e., 4-log virus inactivation/removal).

• Compliance monitoring for systems which disinfect to ensure that they reliably achieve 4-log inactivation or removal of viruses.

  - Applies to all ground water systems and mixed surface water/ground water systems that currently disinfect and to systems that disinfect as a corrective action.

Background: In March 2000, SAB's Drinking Water Committee met in Washington and drafted comments on the Ground Water Rule. Draft comments were developed on the use of fecal indicators, the use of hydrogeological assessments, and source water monitoring. On fecal indicators, the committee recommended that the Agency propose monitoring for both bacterial (E. coli or enterococci) and viral indicators (coliphages) for both routine and triggered monitoring. The committee strongly felt that no single indicator adequately captures all fecal contamination. On which indicators should be used under the rule, the committee felt that both E. coli and enterococci are effective bacterial indicators. However, the committee recommended that EPA use both somatic and male-specific coliphage because together they will detect a larger population of coliphage and laboratory methods will be available in the near term to detect both at the same time.

Hydrogeological assessments are being considered by the Agency as a basis for distinguishing between groundwater sources that are more or less vulnerable to fecal contamination. The committee expressed concern about the ability to accurately assess the sensitivity of specific ground water sources. Therefore, the committee recommended that all ground water sources be required to monitor for bacterial indicators and coliphage for at least one year, regardless of the sensitivity determinations.

The committee also stated the general concern that in the current rule many untreated ground water systems will not be monitored at the source. It is possible that after an initial monitoring period of one year, states could require less or even no source monitoring if the initial sampling is negative.

In the 1996 Amendments to the SDWA, a schedule was set for the Ground Water Rule (previously called the Ground Water Disinfection Rule. The key change in the Act extends the time frame for the final Ground Water Rule stating that it can be issued "at any time after August 6, 1999, but not later than the promulgation of the Stage-2 MDBP rules." The new law makes clear that the option of not requiring disinfection for all ground water systems is allowable. This distinction was not clear in the old law.

EPA held a series of public meetings to receive input on various aspects of the rule. Past AMWA Bulletins covering development of the proposed rule are 96-51, 96-66, 96-68, 97-03, 97-14, and 97-60.

Legal Deadlines: EPA has completed an arsenic research plan that was required by February 1997. EPA must propose an arsenic rule by January 2000 and finalize it by January 2001.

Current Status and Near-Term Action: EPA published the proposed Arsenic Rule in the Federal Register on June 22, 2000. A pre-publication version of the rule was sent to Members in Bulletin 00-15. The comment period will last 90 days with comments due to EPA by September 20. Please submit comments to AMWA by September 1 for inclusion in the Association's comments.

In July, EPA asked the Science Advisory Board (SAB) for recommendations on the pediatric risks of arsenic in drinking water. EPA had announced that it would publish a health advisory recommending the use of drinking water with low levels of arsenic in preparation of infant formula because of uncertainty about risks to infants. EPA reassessed its plans for the baby formula advisory after members of SAB's Drinking Water Committee voiced opposition to such an advisory at its June 5-7 meeting. At the meeting, EPA asked the committee if it would be appropriate to issue precautionary advice on the use of low-arsenic water in preparation of infant formula. Several committee members agreed that such an advisory would be ill advised since the data on the risks are inconclusive. EPA is in the process of revising the standard for arsenic in drinking water but wanted to issue a health advisory before the final rule is implemented. EPA requested an expedited report from SAB but its not known when a report will be completed.

In March 2000, SAB's Drinking Water Committee met in Washington to discuss issues related to the Arsenic Rule, but the committee did not make any formal recommendations. However, the committee has planned a follow-up meeting in June, shortly after the Arsenic Rule is proposed, to discuss several health effects and cost issues. The committee will be charged with applying the findings of the National Academy of Science's (NAS) report on arsenic to EPA's proposed regulation and with reviewing the cost of implementing the proposed rule.

In June 2000, the SAB's Drinking Water Committee continued its review of the proposed Arsenic Rule. Two subcommittees &endash; health effects and engineering &endash; appear ready to recommend a less stringent standard for arsenic than the 5 ppb proposed by EPA. A standard in the 10 to 20 ppb range was discussed. The recommendations remain to be finalized and approved by the full committee.

The committee was concerned that EPA "overinterpreted" last year's report from the NAS in developing the risk estimates. Particularly, the committee pointed out that the extent of possible lung cancer cases was overstated by a substantial factor. The committee also discussed the uncertainties surrounding arsenic's effects at low levels in drinking water. It suggests that EPA has overestimated potential risk. For example, while a study in Taiwan is used to justify a low MCL based on excess bladder and lung cancer, an EPA study in Utah found no evidence of either at arsenic levels of 200 ppb. Overall, it appears that EPA overestimated the benefit of the rule, according to the committee.

The committee also questioned EPA's cost-benefit analysis. The costs are likely to be underestimated due to underestimating treatment residuals disposal costs, a finding supported by the recent AWWARF report on arsenic.

EPA submitted the proposed arsenic rule for review by OMB in February. According to sources, the proposed rule was sent with concurrence by EPA's Office of Congressional and Intergovernmental Relations (OCIR). OCIR had objected to a 5 ppb MCL for arsenic during internal agency review. Reportedly, revisions were made to the preamble of the rule, but at this time the nature of the change is not known. OMB's review is expected to take 90 days. It is expected that the proposed rule will be published in the Federal Register in June 2000. EPA has stated that it will issue a Health Advisory for arsenic at the same time the proposal is issued.

An internal dispute at EPA over the appropriate regulatory level for arsenic delayed publication of the proposed rule. EPA's OCIR objected to a 5 ppb MCL for arsenic during internal agency review. OCIR cited the inadvisability of data from a study in Taiwan to establish U.S. standards, holding that the study did not support any substantial lowering of the existing standard of 50 ppb. OCIR also cited the high costs to small systems, noting that these costs were excessive given the weakness of the health data. Additionally, the office noted that the costs were likely understated in the draft proposal.

A new study in the September 1999 issue of Environmental Health Perspectives found an association between bladder cancer with arsenic levels greater than 0.5 ppb.

Background: Arsenic regulation remains active under the SDWA Amendments of 1996. The key changes in the Act extend the time frame for arsenic regulation and require needed research. EPA completed the arsenic research plan. The plan was reviewed by EPA's Board of Scientific Counselors (BOSC) which provided a variety of comments including their feeling that a threshold likely exists for skin cancer in the neighborhood of 100 to 200 ug/L (compared to the present standard of 50 ug/L), and the need for further, long-term epidemiology studies to help resolve major uncertainties. Additionally, the BOSC suggested a two-step approach to regulation, which would take a small step by January 2000 with later, more definitive regulation when the results of long-term studies were available.

On March 23, 1999, the National Research Council (NRC) released a report recommending that the EPA revise the existing 50 ug/L standard for arsenic "downward as quickly as possible." NRC also recommended that EPA improve its arsenic toxicity analysis and risk characterization, conduct additional human studies, identify proximate markers of arsenic-induced cancers, and provide wider safety margins. Further, NRC concluded that chronic ingestion of inorganic arsenic causes bladder and lung cancer, as well as skin cancer (see AMWA Bulletin No. 99-14 for more details).

At a June 1999 stakeholders meeting, EPA stated that the practical quantitation level (PQL) for arsenic (which is one factor in setting how low the arsenic MCL can be) has been determined to be 3 ug/L. The general discussions at the meeting indicate that EPA is considering an MCL in the range of 2 to 20 ug/L with their focus being toward the lower end of the range.

Since October 1997, Representative Tom Bliley (R-VA), Chair of the House Commerce Committee with jurisdiction over the Safe Drinking Water Act, has expressed continuing concern in writing about EPA's delay in starting arsenic research and in reporting to him its status and how funds have been obligated.

Legal Deadlines: EPA met the February 1999 deadline for publication of a radon Health Risk Reduction and Cost Analysis (HRRCA). The agency missed the deadline for proposing a radon rule by August 1999. The final rule must be promulgated by August 2000.

Current Status and Near-Term Action: The comment period for the proposed Radon Rule ended February 4, 2000. The proposed rule was published in the Federal Register on November 2, 1999. EPA still plans on meeting the SDWA deadline of August 2000 for promulgating the final Radon Rule. However, the EPA has acknowledged that meeting this deadline will be a challenge.

The proposed rule includes a multimedia approach to radon control stressing that actions to reduce radon in air offer superior risk reduction to controlling typical levels of radon in drinking water. EPA assumes in the proposal that the multimedia approach, mandated by the SDWA, will be adopted by most states and systems, avoiding the high costs of water treatment at the proposed MCL of 300 picoCuries per liter (pCi/L). Where multimedia programs are in place, systems would only have to meet an alternative MCL (AMCL) of 4,000 pCi/L.

AMWA made three major suggestions in comments to EPA on the Proposed Radon Rule: adopt an alternative regulatory framework proposed by AMWA; simplify the Multimedia Mitigation (MMM) program concept to ensure state-sponsored programs; and develop guidance and other technical assistance to implement the final rule. Each of these is summarized below:

• Alternative Regulatory Framework: In the proposed rule, water systems may choose to comply with one of two regulatory options: (1) an MCL of 300 pCi/L or (2) an Alternative MCL (AMCL) of 4,000 pCi/L for systems that would participate in a MMM program. The use of two separate standards presents water systems with serious risk communication challenges. Specifically, if a system chose to participate in a MMM program and thus comply with the 4,000 pCi/L AMCL, it could be perceived as violating the seemingly safer MCL. To eliminate this risk, AMWA offers an alternative framework in which the MCL would be 4,000 pCi/L, and 300 pCi/L (or the number EPA chooses in the final rule) would be called an Action Level. Systems choosing to participate in a MMM program would comply with the MCL of 4,000 pCi/L. Systems that choose to control radon through water treatment alone would be subject to the Action Level. With this approach, the perception that a water system is choosing to avoid compliance with the MCL is gone.
  
• Simplify MMM Program Concept: AMWA strongly suggests that EPA review the proposed rule for opportunities to simplify the current MMM program concept to find ways to encourage state-sponsored MMM programs. This would eliminate the need for water systems to develop such programs on their own.
  
• EPA Guidance and Technical Assistance for Final Rule: AMWA stresses the need for EPA guidance and technical assistance materials to support the implementation of the final rule. AMWA strongly suggests that EPA provide sufficient resources and public review for the development of all guidance and technical assistance materials.

Background: A September 1998 report by the National Research Council (NRC) on risks from radon concludes that "radon in household water supplies increases peoples' overall exposure to the gas, but waterborne radon poses few risks to human health." The report, nevertheless, generally agrees with EPA's 1994 estimates of the number of cancer deaths that may be attributable to radon in drinking water. EPA's comments on the report stress this fact indicating that changes from previously proposed regulatory levels in the neighborhood of 300 pCi/L of water remain in contention as a future regulatory level. The report was required by the 1996 Amendments to the SDWA.

The NRC report also looked at ways of implementing an AMCL for radon, recommending that such level be in the 4,000 pCi/L range. The SDWA provides for an AMCL that drinking water systems would be allowed to meet provided that effective multimedia programs for mitigating risks from indoor air are implemented in their communities. The report notes that such programs may be problematic since risk reduction may only take place in relatively few residences compared to the across-the-board reductions expected from treating drinking water. Additionally, the report notes that education and outreach programs designed to entice homeowners to reduce indoor radon, on their own, would probably not be effective.

The required HRRCA was released in February 1999. The HRRCA is the first to be completed under the cost-benefit provisions of the SDWA and is intended to provide the public with key information prior to proposal of the radon regulation.

The HRRCA carefully lays out all methods and assumptions used in the analysis and requests comments on their appropriateness and adequacy. Overall, the analysis finds that at any level of radon regulation from 100 to 4,000 pCi/L, the best estimate of total costs exceeds the best estimate of benefits. However, an analysis of impacts on large (>100,000) systems with radon shows just the opposite for that category of systems. Further, the report finds that at any of the MCL levels studied, the costs to customers of large water systems impacted would be $6 to $7 per year. The report estimates that 85 percent of any cancer cases avoided would be among current or former smokers. The HRRCA also presents information on the costs and benefits of implementing a multimedia mitigation program (MMM).

On April 12, 1999 AMWA filed comments with EPA on its HRRCA for radon. Included in AMWA's comments was a request that EPA strive to clearly articulate to the public: "What risks do I face from radon in drinking water?" and "If my water system implements radon control, what will be the benefits and costs to my community?" AMWA suggested to EPA that by better informing the public and EPA's own decision makers, better public health decisions and ultimately better regulations would be developed. Additionally, AMWA urged EPA to take a more direct look at the costs and benefits to communities from a public health decision viewpoint and noted that the HRRCA had aggregated and considered benefits only at the national level.

Note: An advance copy of the proposed rule was forwarded to all AMWA members with Bulletin 99-39.

Legal Deadlines: EPA plans to promulgate a Long Term 1 Enhanced Surface Water Treatment Rule (LT1ESWTR) covering systems serving fewer than 10,000 people by November 2000. Of interest to AMWA members is the Long Term 2 Enhanced Surface Water Treatment Rule (LT2ESWTR) covering large systems which will be promulgated along with the Stage-2 Disinfection Byproducts Rule (DBPR) by May 2002. The two rules collectively are called the Stage-2 Microbial and Disinfection Byproducts (MDBP) Rules. EPA plans to propose the rules in February 2001.

Current Status and Near-Term Action: The Stage-2 FACA has one remaining scheduled meeting on July 27-28 in Washington, DC to hammer out an agreement on the Stage-2 disinfection byproduct and microbial rules. The FACA has reached consensus on tentative elements of an agreement but details remain to be worked out at the July 27-28 meeting. At these meetings, the FACA representatives are expected to continue discussion of these possible Stage-2 options including such details as compliance and implementation issues. If final agreement is reached, the participants in the negotiations will present the agreement to their organizations for final approval. EPA would then propose rules based on the agreement in early 2001 and work to finalize the rules by the May 2002 SDWA deadline.

Background: The LT2ESWTR and the Stage-2 D/DBPR are the subject of ongoing FACA discussions, which formally started in March 1999. The FACA is a continuation of the regulatory negotiations which led to the Stage-1 MDBP Rules. During the first regulatory negotiations, the parties agreed to undertake a similar process for further MDBP rulemaking when additional data from the Information Collection Rule and health effects, treatment and other research was available. The FACA is scheduled to meet through July 2000 and make recommendations to EPA on how the rules should be modified in light of new information.

Summaries of all Stage-2 FACA meetings are reported to members by special AMWA Bulletins. The following Bulletins have been issued to date:

Bulletin	Meeting Date/Place	Subject
98-64	December 15-16, 1998 Washington, DC	General background on the FACA process
99-10	February 10-12, 1999 Washington, DC	Health Effects Workshop covering disinfection by-products and microbial contaminants
99-13	March 10-12, 1999 Washington, DC	ICR data analysis, analytical methods research, pathogen and DBP treatment effectiveness, pathogens in distribution systems, and information on source water characterization
99-16	March 30, 1999 Washington, DC	First formal stakeholders meeting of the FACA covering schedules and ground rules
99-25	May 20 - 21, 1999 Washington, DC	The FACA committee reviewed and discussed toxicological and epidemiological cancer health effects data
99-29	July 21-22, 1999 Washington, DC	The FACA committee reviewed and discussed reproductive and developmental health effects data
99-36	September 8-9, 1999 Washington, DC	The FACA committee reviewed and discussed microbial and Information Collection Rule issues.
99-38	September 22-23, 1999 Washington, DC	The FACA committee reviewed 9 months of ICR data and received a primer/overview of drinking water treatment technologies.
99-40	October 27-28, 1999 Washington, DC	The FACA committee reviewed the status of health risk assessments, reviewed 12 months of ICR data, and heard an overview of cross connection control and backflow prevention programs.
99-44	December 8-9, 1999 Washington, DC	The FACA committee reviewed the status of compliance estimates for Stage-1, microbial risk characterizations, treatment costs, and Stage-2 options.
00-01	January 12-13, 2000 Washington, DC	The FACA committee discussed possible Stage-2 rule problems and solutions and reviewed the status of DBP health effects data.
00-07	March 29-30, 2000	The FACA committee reviewed the baseline of compliance with the State-1 rules and potential technologies and costs for DBP control. the FACA began to discuss a range of options under State-2.
00-11	April 12-13, 2000 Washington, DC	The FACA committee was presented preliminary results of initial Stage-2 options. The FACA held additional discussions on rule options and alternatives for Technical Workgroup impact analysis.
00-14	June 1-2, 2000 Washington, DC	The FACA committee was presented estimates of the impacts of various rule options. The FACA also reviewed the microbial framewok, the status of UV technology, and held additional discussions on rule options and alternatives for Technical Workgroup impact analysis.
00-15	June 27-28, 2000 Washington, DC	The FACA reached consensus on tentative elements of an agreement for both disinfection byproducts and microbial components of the Stage-2 rules. Details remain to be fleshed out before and during the next meeting of the FACA scheduled for July 27-28. Outstanding issues include compliance timeframes, bromate, small systems, and distribution system issues.

Legal Deadlines: The SDWA requires EPA to issue a final rule governing filter backwash recycle practices by August 2000, but imposes no deadline for the proposed rule.

Current Status and Near-Term Action: AMWA submitted comments on June 9 on the proposed FBR requesting that EPA withdraw and repropose the rule. The comments pointed out several deficiencies in the proposed rule including the fact that the proposal does not inform water systems impacted by the rule what they will be required to do. EPA has deferred such information to guidance documents that will not be subject to formal review and comment. AMWA believes that such documents are an integral part of this rule and must be proposed with the rule.

The Association also objected to the Agency mandating plant design parameters under the rule. Specifying how existing plants should be redesigned without regard to their present levels of operations is inappropriate according to the comments. AMWA pointed out that arbitrary selection of points of recycle return absent indications of deficiencies in treatment could have unintended negative impacts on process control. Additionally, AMWA pointed out that mandating how future plants should be designed inhibits innovation. The comments in this area echoed the recommendations of the Science Advisory Board's Drinking Water Committee.

The Association also objected to EPA using old, inadequate Cryptosporidium occurrence data, since the data from the ICR is the best data available. Moreover, the ICR data shows that national Cryptosporidium occurrence is at least 10 times lower than the old data would indicate. This factor is significant in cost-benefit analyses since the potential benefits would be decreased by a factor of 10 or more. AMWA pointed out that this change could lead to different risk management decisions than those reflected in the proposal.

AMWA recommended that any final rule acknowledge the importance of operating parameters and the rule not apply to any system in compliance with the combined filter effluent provisions of the Interim ESWTR.

Background: The Proposed Filter Backwash Rule appeared in the Federal Register on April 10, 2000. The comment period on the proposed rule closed on June 9, 2000.

Unfortunately, the EPA proposed the Long-Term 1 Enhanced Surface Water Treatment and Filter Backwash efforts as one rule. This will make review of the Filter Backwash portion of the rule more difficult. However, it is expected that the two efforts will be separated into two rules for final promulgation to meet the SDWA deadline for the Filter Backwash Rule of August 2000 and the deadline for the Long-Term 1 Enhanced Surface Water Treatment Rule LT1ESWTR) of November 2000.

Under the Filter Backwash Rule, EPA is establishing filter backwash requirements that address the potential risk associated with recycling of contaminants removed during the filtration process. The LT1ESWTR extends the large system requirements of the ESWTR, promulgated in 1998, to systems serving under 10,000 people.

The Filter Backwash Rule will apply to all public water systems using surface water or ground water under the direct influence of surface water with a recycle flow. The three major provisions of the rule are:

• Recycle systems will be required to return spent filter backwash water, thickener supernatant, and liquids from dewatering process prior to the point of primary coagulant addition unless the State specifies an alternative location;
  
• Direct filtration systems recycling to the treatment process must provide detailed recycle treatment information to the State, which may require that modifications to recycle practice be made; and,
  
• Conventional systems that practice direct recycle, employ 20 or fewer filters to meet production requirements during a selected month, and recycle spent filter backwash water, thickener supernatant, and/or liquids from dewatering process within the treatment process must perform a one-month, one-time recycle self-assessment. The self-assessment requires hydraulic flow monitoring and that certain data be reported to the State, which may require modifications to recycle practice be made to protect public health.

In March 2000, SAB's Drinking Water Committee discussed several aspects of the Filter Backwash Rule. Based on their discussions, the committee prepared draft recommendations on the rule. In their comments, the committee cautioned EPA against requiring that washwater be recycled to a point ahead of the coagulant addition point. According to the committee, experience has shown that returning the flow ahead of the coagulant addition point can adversely affect the coagulation process due to the resulting variations in loadings. Rather, the committee recommended that the EPA conduct studies to determine if gravity settling of the washwater return flows is sufficient or if additional treatment is required. If problems are demonstrated, then a requirement for direct treatment of the backwash water should be considered. Additionally, current solids recirculation practices are often integral to the process and changes could have detrimental effects. Therefore, the committee also recommended against requirements that would alter the design of these direct recycle processes.

In other comments, when determining if a water treatment plant is exceeding its capacity, the committee suggested that EPA require monitoring of performance parameters such as settled water and filtered water turbidity instead of using capacity parameters such as filter rate and basin overflow rate. Use of capacity capabilities is problematic since states do not define these in the same ways, especially for recycled flows. The committee also looked at the most appropriate time to monitor under the rule. The committee recommended that EPA require monitoring during periods of the year when unit processes are most challenged by water quality characteristics instead of focusing on high demand periods alone. The committed also recommended that EPA study the treatment of recycle flows in direct filtration plants to determine the level of treatment that is appropriate. Lastly, the committee made the general recommendation that in developing the rule, EPA should try to address the control of outbreaks as well as endemic disease. The committee noted that waterborne disease is dominated by outbreaks and may not be addressed if only endemic disease is reduced.

Last year, EPA held a number of stakeholder meetings to gather information and views on regulating filter backwash recycle. Through the meetings, EPA learned that there is a general lack of information on the risks that may be associated with recycle streams and on present recycle practices and problems. This will make estimating the costs and benefits of the rule difficult. EPA's early thinking on rule elements, as outlined in Bulletin 99-09, tended to be rather prescriptive. A draft preamble for the proposed rule provided in May 1999 reflects more flexibility in the Agency's thinking.

EPA issued a draft preamble for the proposed rule in May 1999 requesting stakeholder comment. The comment period closed June 30, 1999. AMWA submitted comments on the draft. EPA submitted the rule to OMB for review in December 1999. OMB finished its review of the rule in March 2000.

Legal Deadlines: EPA is under a court order to either finalize the 1991 proposal for radionuclides or to ratify the existing standards by November 2000. For uranium, the court also required a final standard by November 2000.

Current Status and Near-Term Action: AMWA submitted comments on EPA's Radionuclides Notice of Data Availability (NODA) on June 20. In the comments, AMWA recommended that the uranium MCL be based on toxicity rather than on cancer due to the available health effects data. AMWA also suggested that the available cost-benefit data does not support a uranium standard of 20 ug/L and the standard should be based on the best available science.

Background: The Radionuclides Rule NODA appeared in the Friday, April 21, 2000 Federal Register (65 FR 21576). The Radionuclides Rule was originally proposed in 1991. The NODA is intended to update the information that was presented in the proposal and to present EPA's current thinking on appropriate regulatory levels for radionuclides. A copy of the NODA was provided to members in Bulletin 00-12.

The NODA proposes the following:

• Radium MCL: Maintain present MCL of 5 picoCuries/liter (pCi/L), but monitoring would change affecting compliance.
  
• Beta/Photon Emitters MCL: Maintain present MCL of 4 mrem.
  
• Gross Alpha MCL: Maintain present MCL of 15 pCi/L.
  
• Polonium-210: Presently included in gross alpha, possible future action based on Unregulated Contaminant Monitoring Rule monitoring results.
  
• Lead-210: Do not regulate at present, possible future action based on Unregulated Contaminant Monitoring Rule monitoring results.
  
• Uranium MCL: Three options under consideration: 20, 40, and 80 ug/L and pCi/L. (The units of measure determination is an interesting twist on normal MCL measures and is discussed on page 21587 of the NODA.)
  
• Ra-224: Continue regulation as part of gross alpha as at present, possible future regulation.

Additionally, the NODA proposes changes to the monitoring schemes for radionuclides and updates analytical methods.

The Radionuclides Rule was originally proposed July 18, 1991. The rule will cover uranium, radium, beta particles and photon and alpha emitters.

Legal Deadlines: None.

Current Status and Near-Term Action: The reopened comment period for the Stage-1 Rule Revisions closed on July 13. EPA withdrew the April 14 direct final rule on the Stage-1 DBP Rule and Interim ESWTR revisions because it received adverse comments. EPA reopened the comment period for one month. AMWA submitted comments suggesting that EPA conduct a workshop on the issue of consecutive systems and invite affected entities such as state primacy agencies, wholesale and retail water suppliers, and other interested parties. A copy of AMWA's letter is attached to this month's Regulatory Report.

EPA plans to address the comments in a final. A copy of the direct final rule was sent to members in the April Regulatory Report.

AMWA submitted comments on the direct final rule addressing technical corrections to the Stage-1 DBPR and IESWTR in May. AMWA requested that EPA withdraw the direct final rule and re-propose the rule after conducting additional analyses to address the issue of monitoring requirements for consecutive systems. AMWA also requested that EPA provide a 60-day public comment period on the re-proposed rule. AMWA believes that the issues addressed in these revisions to the Stage-1 rules are significant and require a standard rulemaking process.

Background: On April 14, EPA published to two Federal Register notices on proposed revisions to the IESWTR and the Stage-1 DBPR. The first notice was a notice of direct final rule and second notice was a notice of a proposed rule, both concerning minor revisions tot he IESWTR and the Stage-1 DBPR.

EPA issued the direct final rule for the revision because the Agency viewed the revisions as minor and non-controversial and anticipated no adverse comment. If EPA did not receive any adverse comments during the comment period that closed May 15, the direct rule would have become effective immediately. Since EPA did receive adverse comment, the Agency withdrew the direct final rule and is now proceeding with promulgation of the proposed rule. The Agency will review and address all comments received in response to the proposal in a subsequent final rule and all comments received in response to the recently reopened comment period.

Specific changes addressed in the notice included: 1) revising compliance dates for the two rules to facilitate implementation; 2) extending the use of new analytical methods under the rules to the longstanding TTHM rule; 3) monitoring for the new standards under the Stage 1 DBPR by consecutive systems (i.e., those systems that purchase finished water); and 4) clarifying regulatory language.

Legal Deadlines: None.

Current Status and Near-Term Action: EPA had planned to issue a direct final rule early in 1998. EPA is presently reassessing whether or not to continue with the effort.

Background: This rule would reformat the current drinking water regulations to make them easier to understand and follow. This rule is not intended to change any of the regulatory requirements. EPA planned to publish the proposed rule in late 1996, but now is targeting June 1999 for promulgation. Direct final rules are those that the agency feels do not require a proposed rule due to their nature.

Legal Deadlines: EPA, in conjunction with CDC, completed a required study on dose-response relationships in February 1999. EPA will use the results of the study to decide whether or not to regulate sulfate by August 2001.

Current Status and Near-Term Action: With the sulfate study completed, EPA will decide whether or not to regulate sulfate by August 2001.

Background: Sulfate regulation remains active under the SDWA Amendments of 1996. The key changes in the Act are replacement of the requirement to regulate sulfate with the regulation at the discretion of the EPA Administrator, and the requirement of a joint study with CDC. Sulfate is required to be included on the Contaminant Candidate List (CCL) with a decision to regulate or not made by August 2001. If the decision is to regulate, a proposal would be required by August 2003, and a final regulation by February 2005.

EPA and CDC were unable to complete a sulfate study on infants since CDC was unable to find enough infants exposed to sulfate levels above 250 mg/L to conduct the study. A study in non-acclimated adults was completed with no evidence of problems up to the highest level tested (1200 mg/L). An expert workshop was called to review the results of the study. The experts concluded that there was insufficient scientific evidence to support regulation and instead recommended a Health Advisory for drinking water with levels above 500 mg/L.

Legal Deadlines: None.

Current Status and Near-Term Action: EPA had planned to finalize the regulation in the fall of 1997. The final rule has been delayed due to negotiations with states and Indian tribes concerning the implementation aspects of the rule. The agency now expects to submit the final rule to OMB for review in early 2000 with a promulgation of the final rule in late spring or early summer 2000. It is expected that the final rule will cover alachlor, atrazine, cyanazine, metolachlor, and simazine, which are the most frequently detected pesticides in ground water.

Background: This regulation, proposed June 26, 1996, would revise the criteria for restricted use classification of pesticides to ensure consideration of their ability to contaminate ground water. The proposed control mechanism is implementation of State Management Plans. The proposal was open for comment through October 24, 1996. A copy of the proposal was forwarded to AMWA members with Bulletin 96-36.

Legal Deadlines: None

Current Status and Near-Term Action: It is not certain whether a final PBMS rule will be promulgated or if the system will be adopted in relevant analytical method rules and notices.

Background: EPA plans to adopt a system that would be designed to increase the flexibility to select suitable analytical methods for compliance monitoring, and would significantly reduce the need for prior EPA approval of methods. The system under development is the Performance-Based Measurement System (PBMS). The Office of Water developed a PBMS implementation plan based on EPA's March 28, 1997 proposed rule (62 FR 14976) and the October 6, 1997, (62 FR 52098) notice of intent to adopt PBMS Agency-wide.

A performance based measurement system would allow the regulated community to use any appropriate analytical test method for compliance purposes provided it met specified data quality needs. EPA believes that making this change will have the overall effect of improving data quality and encouraging the advancement of analytical methods.

EPA will modify the regulations that require exclusive use of Agency-approved methods for compliance monitoring of regulated contaminants in drinking water regulatory programs. Under PBMS, EPA will only specify "performance standards" for methods, which the Agency will derive from the existing approved methods. EPA would continue to approve and publish compliance methods for laboratories that choose not to use PBMS.

Note: Changes since the last Federal Report are underlined.

Federal Register: July 13, 2000 (Volume 65, Number 135)
Rules and Regulations
Page 43585-43670

ENVIRONMENTAL PROTECTION AGENCY

Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: Today's final rule revises and clarifies the Environmental Protection Agency's (EPA) current regulatory requirements for establishing Total Maximum Daily Loads (TMDLs) under the Clean Water Act (CWA) so that TMDLs can more effectively contribute to improving the nation's water quality. Clean water has been a national goal for many decades. While significant progress has been made, particularly in stemming pollution from factories and city sewage systems, major challenges remain. These challenges call for a focused effort to identify polluted waters and enlist all those who enjoy, use, or depend on them in the restoration effort. Today's action will establish an effective and flexible framework to move the country toward the goal of clean water for all Americans. It establishes a process for making decisions in a common sense, cost effective way on how best to restore polluted waterbodies. It is based on identifying and implementing necessary reductions in both point and nonpoint sources of pollutants as expeditiously as practicable. States, Territories, and authorized Tribes will develop more comprehensive lists of all waterbodies that do not attain and maintain water quality standards. States, Territories, and authorized Tribes will schedule, based on priority factors, the establishment of all necessary TMDLs over 10 years, with an allowance for another five years where necessary. The rule also specifies elements of approvable TMDLs, including implementation plans which contain lists of actions and expeditious schedules to reduce pollutant loadings. States, Territories, and authorized Tribes will provide the public with opportunities to comment on methodologies, lists, prioritized schedules, and TMDLs prior to submission to EPA. The rule lays out specific timeframes under which EPA will assure that lists of waters and TMDLs are completed as scheduled, and necessary National Pollutant Discharge Elimination System (NPDES) permits are issued to implement TMDLs. The final rule explains EPA's discretionary authority to object to, and reissue if necessary, State-issued NPDES permits that have been administratively continued after expiration where there is a need for a change in the conditions of the permit to be consistent with water quality standards and established and approved TMDLs.

EPA believes that these regulations are necessary because the TMDL program which Congress mandated in 1972 has brought about insufficient improvement in water quality. EPA had been concerned about this lack of progress for some time when, in 1996, it established a Federal Advisory Committee. The Committee was asked to advise EPA on possible improvements to the program. After careful deliberations, the Committee recommended that EPA amend several aspects of the regulations. EPA believes that these regulations will benefit human health and the environment by establishing clear goals for identification of impaired waterbodies and establishment of TMDLs. The regulations will also ensure that States, Territories and authorized Tribes give a higher priority to restoring waterbodies which have a greater potential to affect human health or threatened or endangered species thereby focusing the benefits of these regulations on the most pressing problems.

Note: A copy of the final rule was forwarded to all members with Bulletin 00-19.

Comment Clerk - Docket Number W-99-11
Water Docket (MC-4101)
U.S. Environmental Protection Agency
401 M St., SW
Washington, DC 20460

Dear Comment Clerk:

The Association of Metropolitan Water Agencies (AMWA) appreciates the opportunity to comment on the U.S. Environmental Protection Agency's (EPA) proposed Revisions to the Interim Enhanced Surface Water Treatment Rule, the Stage 1 Disinfectants and Disinfection Byproducts Rule and Revisions to State Primacy Requirements to Implement the Safe Drinking Water Act Amendments. The notice of the reopening of the comment period for this rule appeared in the June 13, 2000 Federal Register.

AMWA agrees with EPA's decision to withdraw the April 14th direct final Stage-1 rule revisions and to address public comments on the proposal before finalizing the rule. Specifically, AMWA has concerns with how the Agency was to regulate consecutive systems. These concerns are discussed in the Association's May 15th comments on the direct final rule.

AMWA has the following additional comments regarding the promulgation of the Stage-1 rule revisions. AMWA believes that the issues involved in the regulation of consecutive systems under the Stage 1 M/DBP rules are complex. AMWA suggests that EPA hold stakeholder meetings on how to handle consecutive systems under the Stage-1 rules that would involve representatives of state primacy agencies, purchase water systems (i.e., utilities that buy treated water), wholesale water systems (i.e., utilities that sell a portion of their finished water), and other interested parties. The objective of the meetings would be to investigate the issues, impacts, and possible scenarios of regulating consecutive systems under the Stage-1 rules. AMWA believes the information exchange that would take place at these meetings would benefit EPA in finalizing the Stage-1 rule revisions.

If you have questions on these comments please contact Jeff Mosher on AMWA's staff.

Sincerely,

Diane VanDe Hei
Executive Director