A variance shall not be available for any contaminant for which a national primary drinking water regulation was issued before January 1, 1986, or for a microbial contaminant or treatment technique.

The Administrator shall periodically review State decisions with respect to variances to determine whether the State is complying with the regulations issued by the Administrator. The Administrator may only review the affordability determination of a variance as compared to the affordability criteria developed by the State. The Administrator shall object to the granting of a variance if it does not comply with the regulations. The State shall not grant a variance until the objections of the Administrator have been resolved.

Discussion

Of the approximately 60,000 community water systems regulated under the Safe Drinking Water Act, nearly 54,000 serve populations of 10,000 or less. While the Environmental Protection Agency (EPA) has taken steps to recognize the difficulties small systems face by focusing technical assistance on small systems with the Small System Technology Initiative, forming the National Training Coalition, and developing handbooks and computer software, the current Safe Drinking Water Act does not generally recognize the problems of small systems.

The basic problem faced by small systems is complying with standards that have been developed based on treatment that is affordable for large systems. Smaller systems lack the economies of scale to absorb additional costs and drinking water regulations can have a greater impact on small systems. For example, if a public water system detected the pesticide aldicarb in its supply, the system may have to install treatment technology in order to comply with maximum contaminant level for the pesticide. EPA estimates the cost of this treatment for a system that serves a population of 100,000 would impose a household cost of approximately $20.70 per year, while the cost to a household in a smaller community (a population of 10,000 or less) would be $145.40, and a household on an even smaller system (less than 100), would be $965.30.

According to EPA, through the end of this century small systems will incur costs of nearly $3 billion to comply with all drinking water regulations. If the radon standard is not modified as proposed in this bill, nearly 70 percent of total compliance costs in the future will be borne by small and very small water systems, even though these systems supply only 10 percent of the population.

A March 1994 General Accounting Office report on small systems urges the EPA to step up its efforts to help small communities use more cost-effective technologies that are available to protect drinking water.

Under section 1415 of the Act, variances from national drinking water regulations may be granted by the primary enforcement authority or the Administrator for public water systems. Variances may be granted to systems, if the systems cannot meet the maximum contaminant levels despite application of the best technology, treatment techniques, or other means which the Administrator finds are available.

This bill adds a new subsection to the variance section to allow for small system variances. The primary enforcement authority for public water systems may grant a variance to a system serving a population of 10,000 or less for the system to use best available technology, described in guidance issued by the EPA, based on what is affordable for a system serving a population of 3,300 or less and ensures protection of human health. A variance allows a system to use a small system treatment technology developed by the EPA to make the best possible and affordable effort to meet a maximum contaminant level.

The objective is to provide as safe a drinking water supply as possible, considering the source water quality and available and affordable treatment techniques. There are available technologies that can provide treatment that under most conditions will meet an MCL.

The bill allows a State to assess the system and evaluate how effective the technology is in treating for a particular contaminant and to ensure that the quality of the source water and other conditions of the variance are being met. Using the variance approach also allows a State to make necessary modifications to a variance upon reviewing any changing conditions.

Requesting a variance protects a system from enforcement action while the small system technology is being developed and a request is being reviewed. Allowing a grace period for a system that is attempting to comply with the requirements of the Act provides a necessary incentive for systems that are not in compliance to take full advantage of the improvements small system treatment technologies can provide.

This bill also requires a system requesting a variance to notify the Administrator and the consumers served by the system of the variance request. The customers served by a system should know if the water they are consuming is meeting national drinking water quality regulations.

Small system technology

Summary

The Administrator is directed to publish guidance describing a treatment technology for small systems serving a population of 3,300 or less in conjunction with any drinking water regulation. Guidance is to identify various small system technologies and the effectiveness and cost of each technology. Within two years of the date of enactment, the Administrator shall issue guidance on small system technology for each national primary drinking water regulation for which a variance may be issued. In addition, the Administrator may request information on commercially available treatment technologies.

Discussion

The Safe Drinking Water Act requires the Administrator to designate best available technology on the basis of what large and regional systems can afford. Many small systems cannot afford the treatment systems used to establish national primary drinking water regulations. However, the EPA has been working on a Small

Systems Low Cost Technology Initiative to encourage the manufacturing community to focus their treatment technology development on small systems. There are alternative technologies for small systems that are available and, unlike the engineered systems traditionally designed for large systems, can be sized to accommodate small systems.

This bill directs EPA to develop guidance or regulations for a small system best available technology when issuing national primary drinking water regulations and to identify the effectiveness and cost of the technology.

These treatment systems would be affordable for small systems, but may not always be able to assure water that meets a maximum contaminant level. To ensure public health protection, additional measures must be considered when determining an appropriate small system best available technology. As part of the guidance, EPA must consider other factors related to the use of the technology, including requirements for the quality of source water to ensure adequate protection of human health, considering removal efficiencies of the technology, and installation and operation and maintenance requirements for the technology. Particular technologies may be appropriate and affordable for a particular size system and not for another size. The Administrator is to consider the range of system sizes and the applicability of various technologies in developing the guidance.

State viability programs

Summary

Within 22 years after the date of enactment, a State with primary enforcement authority shall develop a State Drinking Water Viability Program and submit it to the Administrator for approval. A program shall include the legal authority to ensure that all new public drinking water systems are viable, and to order restructuring of systems in violation of a national primary drinking water regulation. The Administrator shall approve the program within 180 days. If the Administrator disapproves the program, the State shall be notified and allowed to resubmit a modified program. A State must have an approved viability program as a condition of primacy.

If a system is meeting the conditions of a restructuring order, the system is not subject to a penalty in an enforcement action for a 3-year period.

Discussion

A viable water system has the financial, managerial, and technical capabilities to remain in long-term compliance with drinking water regulations. Technological innovation and technical and financial assistance will help small systems comply with the Act, but do not provide a comprehensive, long-term solution for nonviable systems.

Viability programs can help identify nonviable systems and provide long-term solutions to compliance problems. The objective of a viability program is to prevent potentially nonviable systems from being formed and to improve the viability of existing systems

through restructuring, including consolidation and alternative source water supply. Restructuring may involve contracting operation and maintenance with a viable system, forming a service or utility district, management consolidation or physical consolidation. The EPA has developed guidance to encourage States to implement restructuring programs and several States have turned toward restructuring strategies and viability programs.

The GAO recommends that EPA revise its priorities to place greater emphasis on developing and implementing viability programs and work with Congress to ensure that the viability proposal is accomplished by a detailed and realistic funding strategy.

This bill recognizes the need to prevent formation of new nonviable systems by requiring States to adopt programs with the authority to prevent new nonviable systems and require the restructuring of non-complying systems. The bill does not require the State to force restructuring on systems who are in compliance with national drinking water regulations.

Small system technology assistance centers

Summary

A new subsection is added to the research section of the Act authorizing the Administrator to make grants to 5 or more small public water system technology assistance centers at institutions of higher learning. The centers shall have the capability to provide leadership in making national and regional contributions to the solution of rural water system technology management problems and to disseminate the results of small pubic water system technology research and training programs through continuing education programs.

Discussion

Small public water systems technology assistance centers can provide significant assistance to State and local governments in the development of programs to address special concerns relating to the water systems of rural communities and Native Americans. The centers focus on development of management strategies to ensure the availability and sustainability of small public water systems serving these communities.

They are particularly important to States with relatively low population density that cover large geographic areas. Communities in these States usually consist of only a few hundred to a few thousand individuals. Delivering water from remote sources is often cost prohibitive without assistance from State and Federal sources.

Coordination of research, training, technical assistance, and outreach efforts through small public water systems technology assistance centers can provide the technical information and outreach components needed by State and local governments. There are currently 54 Water Resource Institutes located at the land grant university in each of the 50 states, the District of Columbia, the Virgin Islands, Puerto Rico and Guam, that can provide information on rural water system treatment technologies, development of alternate supplies, training to enable compliance with State and Fed

eral regulations, as well as, acting as clearing houses for research efforts for small water systems.

In addition, Native American tribes face many of the same problems that States and small communities face in developing and operating rural water systems. In recent years, more tribal organizations have assumed responsibility for management of rural water systems and general water quality management programs. They face many difficulties in developing and initiating programs and the centers can provide training and technical assistance to support these efforts.

SECTION 6. ENFORCEMENT

Summary

This section of the bill amends section 1414 of the Act to improve enforcement. It authorizes the Administrator to issue compliance orders, assess administrative penalties, including penalties against Federal facilities for violations of the Act, and pursue civil actions in Federal district court. The section also requires that the Administrator and courts consider a broad range of factors in assessing any penalty and it provides for a moratorium on enforcement actions if a system is pursuing consolidation in accordance with an approved plan.

It also revises requirements for water suppliers to notify the public of violations, distinguishing between serious violations, for which notice is required within 24 hours of a violation, and other violations, for which notice is required only once per year.

Discussion

Like other major Federal environmental laws, the Safe Drinking Water Act assigns to States the primary responsibility for enforcement. Also like other major Federal environmental laws, the Safe Drinking Water Act authorizes the Administrator to supplement State enforcement efforts by issuing administrative compliance orders and by bringing civil enforcement actions seeking penalties of up to $25,000 per day. Unlike other major Federal environmental laws, the Safe Drinking Water Act does not authorize the Administrator to directly assess administrative penalties greater than $5,000 or to bring criminal enforcement actions (except for tampering).

The provisions of the Safe Drinking Water Act authorizing the Administrator to issue administrative compliance orders and bring civil enforcement actions are cumbersome. the Administrator cannot take any enforcement action until 30 days after the Administrator has notified the operator and the State of a violation, and cannot take any action unless the Administrator makes a formal determination that the State itself is not undertaking sufficient enforcement efforts. If a public water system refuses to comply with repeated compliance orders, the only recourse is to refer the case to the Justice Department for enforcement in Federal district court. As a result, EPA's enforcement efforts under this Act have been limited. In 1992, EPA brought only 18 cases against public water systems, compared to 269 cases against dischargers under the Clean Water Act and 303 cases against stationary and mobile