B-166506.OM, AUG 7, 1979

B-166506.OM, AUG 7, 1979

SUBJECT: DRAFT OF A PROPOSED REPORT - EPA SHOULD SEEK LEGISLATION REQUIRING ALL STATES TO ACCEPT RESPONSIBILITY FOR THE SAFE DRINKING WATER PROGRAM - (CED -79-19) - B-166506-O.M.

DIRECTOR, CED:

WE HAVE REVIEWED THE DRAFT REPORT CONCERNING PROPOSALS TO AMEND THE SAFE DRINKING WATER ACT (ACT) TO MAKE ITS IMPLEMENTATION MORE EFFECTIVE. HAVE DISCUSSED OUR CONCLUSIONS WITH MEMBERS OF YOUR STAFF AND, AT THEIR REQUEST, HAVE SET THEM FORTH BELOW.

REFLECTING THAT AGENCY'S POSITION, THE REPORT STATES THAT THE ENVIRONMENTAL PROTECTION AGENCY (EPA) IS REQUIRED BY THE ACT TO OPERATE DRINKING WATER AND HEALTH PROGRAMS IN THOSE STATES THAT CANNOT OR WILL NOT OPERATE THEM, AND ON INDIAN LANDS OVER WHICH STATES DO NOT HAVE JURISDICTION. (SEE PAGE I, 5, 14, 16 OF THE DRAFT REPORT.) WE DO NOT BELIEVE THERE IS A LEGAL BASIS FOR THIS STATEMENT.

CONGRESS PASSED THE SAFE DRINKING WATER ACT, 42 U.S.C. SECS. 300F ET SEQ. (1976), TO INSURE THAT WATER SYSTEMS THROUGHOUT THE NATION MEET CERTAIN MINIMUM NATIONAL HEALTH STANDARDS. EPA IS REQUIRED TO ISSUE DRINKING WATER REGULATIONS TO ASSURE THE HEALTHFUL QUALITY OF DRINKING WATER. THE PURPOSE OF THE STATUTE'S ENFORCEMENT PROVISIONS, WITH WHICH WE ARE HERE CONCERNED, IS TO ASSURE THAT THE QUALITY OF THE NATION'S DRINKING WATER SUPPLIES ARE IN CONFORMITY WITH THE REQUIREMENTS OF THE ACT AND EPA'S IMPLEMENTING REGULATIONS.

THE CONGRESS EXPECTED THAT THE STATES WOULD UNDERTAKE THE RESPONSIBILITY TO ENFORCE THE REGULATIONS. THE LEGISLATIVE HISTORY, H.R. REP. NO. 1185, 93RD CONG., 2ND SESS. 21 (1974), STATES:

"IT IS THE COMMITTEE'S INTENT THAT STATES AND PUBLIC WATER SYSTEMS TAKE THE PRIMARY RESPONSIBILITY FOR INSURING THE SAFETY OF THE NATION DRINKING WATER SUPPLIES. WHILE FEDERAL STANDARD SETTING AND BACK-UP ENFORCEMENT IS AUTHORIZED, THE COMMITTEE IS HOPEFUL THAT STATE AND FEDERAL COOPERATION WILL BE THE RULE AND THAT THE STATES WILL TAKE THE LEAD IN ADOPTING STANDARDS, REVIEWING COMPLIANCE STRATEGY, AND WHERE NECESSARY BRINGING ENFORCEMENT ACTIONS."

THE ACT LISTS FIVE REQUIREMENTS WHICH A STATE MUST MEET BEFORE THE ADMINISTRATOR CAN GRANT IT PRIMARY ENFORCEMENT RESPONSIBILITY (CALLED "PRIMACY" IN THE REPORT) OVER ITS PUBLIC WATER SYSTEMS. 42 U.S.C. SEC. 300G-2. BY REGULATION, EPA HAS EXPANDED THESE REQUIREMENTS TO 15. C.F.R. SEC. 142.10 (1978).

THE REPORT, IN OUR VIEW, CONFUSES TWO DIFFERENT ACTIVITIES IN DEFINING "PRIMACY": THE ENFORCEMENT OF THE PRIMARY DRINKING WATER REGULATIONS AND THE STATE'S OPERATION OF A REGULATORY ENFORCEMENT PROGRAM. EPA HAS "BACKUP" RESPONSIBILITY FOR ENFORCING ITS REGULATIONS. IF A STATE DESIRES TO ASSUME ENFORCEMENT RESPONSIBILITY, QUALIFYING IT FOR GRANTS, IT MUST UNDERTAKE THE PROGRAM PRESCRIBED IN EPA'S REGULATIONS. THIS PROGRAM IS MORE EXTENSIVE THAN CORRECTING REGULATORY VIOLATIONS AS THEY COME TO THE STATE'S ATTENTION. A STATE MUST, FOR EXAMPLE, PERFORM PERIODIC SANITARY SURVEYS AND REVIEW DESIGN PLANS AND SPECIFICATIONS OF WATER SYSTEMS. EFFECT, THEN, EPA'S PRIMARY ENFORCEMENT RESPONSIBILITIES ARE MORE LIMITED THAN THE STATE'S PRIMARY ENFORCEMENT RESPONSIBILITIES.

ALTHOUGH STATES ARE NOT REQUIRED TO ADOPT PRIMACY PROGRAMS, THEY ARE STRONGLY ENCOURAGED TO DO SO. EPA PROVIDES TECHNICAL AND FINANCIAL ASSISTANCE TO THOSE STATES WHICH HAVE, OR ARE IN THE PROCESS OF ESTABLISHING, A PRIMACY PROGRAM. 42 U.S.C. SEC. 300J-1 (1978); 42 U.S.C. SEC. 300J-2 (1978). IF, DESPITE THESE INCENTIVES, A STATES DOES NOT ASSUME PRIMACY, EPA BELIEVES IT IS REQUIRED TO DO SO. WE DISAGREE.

IN THIS REGARD, NO PROVISION IN THE ACT EXPLICITLY MANDATES THE EPA TO ASSUME THE ROLE ASSIGNED TO THE STATES IF THE STATES DO NOT. THE PROVISIONS OF THE ACT PROVIDE THE ADMINISTRATOR WITH MANY OF THE POWERS STATES MUST HAVE BEFORE THEY CAN ASSUME PRIMACY. SEE E.G. 42 U.S.C. SEC. 300G-3 (1978); 42 U.S.C. SEC. 300J-4(A)(1978); 42 U.S.C. SEC. 300J 4(B)(1)(1978); 42 U.S.C. SEC. 300IA) (1978). HOWEVER, ONE CANNOT INFER FROM THESE PROVISIONS THAT EPA MUST UNDERTAKE THE OPERATION OF A STATE TYPE PRIMARY ENFORCEMENT PROGRAM IN THOSE STATES WHICH ARE UNABLE OR UNWILLING TO ACCEPT THAT RESPONSIBILITY. THE ACT AND ITS LEGISLATIVE HISTORY EXPLICITLY STATE THAT WHEN EPA FINDS VIOLATIONS OF ITS DRINKING WATER REGULATIONS, ITS REMEDY IS IN COURT, NOT IN OPERATING A STATE'S ENFORCEMENT PROGRAM. COMPARE, FOR EXAMPLE, CONGRESS' HANDLING OF UNDERGROUND WATER DRINKING SYSTEMS (SOMETHING NOT COVERED BY THIS REPORT), 42 U.S.C. SEC. 300H. THERE, WHEN A STATE DOES NOT SUBMIT AN APPROPRIATE UNDERGROUND INJECTION CONTROL PROGRAM, EPA IS REQUIRED TO PRESCRIBE, BY REGULATION, A PROGRAM FOR THAT STATE AND TO COMMENCE A CIVIL ACTION IN COURT IF THE STATE FAILS TO ENFORCE THE PROGRAM. 42 U.S.C. SEC. 300H-1(C) AND H-2. THUS, EVEN WHEN EPA IS AUTHORIZED TO PRESCRIBE A STATE PROGRAM, CONGRESS DID NOT PROVIDE FOR IT TO OPERATE THE PROGRAM WHEN THE STATE DOES NOT.

THE QUESTION REMAINS AS TO WHETHER THE EPA HAS THE AUTHORITY, AS OPPOSED TO THE RESPONSIBILITY, TO ASSUME PRIMARY ENFORCEMENT AUTHORITY IN THOSE STATES WHICH EITHER DO NOT HAVE OR ARE NOT PROPERLY IMPLEMENTING THE ENFORCEMENT PROGRAM.

THE REPORT STATES THAT AS OF JUNE 1979, EPA HAS ASSUMED PRIMACY FOR 36,200 WATER SYSTEMS IN 7 STATES WHICH FOR SEVERAL REASONS HAVE DECIDED NOT TO IMPLEMENT AN APPROPRIATE ENFORCEMENT PROGRAM OF THEIR OWN. EPA IS THEN CRITICIZED FOR NOT IMPLEMENTING A PROGRAM AS EXTENSIVE AS THAT OF STATES WITH PRIMACY. HOWEVER, WE FEEL THAT CONGRESS DID NOT INTEND THAT EPA ASSUME THIS RESPONSIBILITY. FIRST, AS YOUR STAFF NOTES, OTHER STATES MAY QUESTION WHETHER THEY SHOULD EXPEND THEIR RESOURCES ON THIS PROGRAM WHEN EPA WILL IMPLEMENT IT (PROVIDED IT GETS THE NECESSARY FUNDING FROM CONGRESS) IF THEY DO NOT. SECOND, AS NOTED IN THE REPORT, THE COST OF A NATIONWIDE, FEDERALLY FUNDED AND OPERATED PRIMACY PROGRAM FOR 250,000 DIFFERENT WATER SYSTEMS WOULD BE PROHIBITIVE.

EPA'S ROLE UNDER THE SAFE DRINKING WATER ACT WAS INTENDED, IN OUR VIEW, TO BE MORE LIMITED. IT IS TRUE THAT UNDER THE ACT, THE ADMINISTRATOR HAS THE AUTHORITY TO PERFORM EACH OF THE FUNCTIONS HE REQUIRES OF THE STATES BEFORE HE GRANTS THEM PRIMARY ENFORCEMENT RESPONSIBILITY. HE CAN EXERCISE THIS AUTHORITY BOTH IN STATES WHICH DO AND STATES WHICH DO NOT HAVE PRIMACY. FOR EXAMPLE, HE CAN ENTER SYSTEMS SUBJECT TO THE ACT FOR INSPECTION AND TESTING. 42 U.S.C. SEC. 300J-4(B). HE CAN TAKE ANY MEASURES THOUGHT NECESSARY TO PROTECT THE PUBLIC WHEN A SYSTEM POSES AN IMMINENT DANGER TO ITS HEALTH. 42 U.S.C. SEC. 300IA). HE CAN COMMENCE A CIVIL ACTION (AFTER GIVING THE PROPER AUTHORITIES A CHANCE TO CORRECT THE SITUATION IN STATES WITH PRIMACY) WHEN HE FINDS A PUBLIC WATER SYSTEM IN VIOLATION OF NATIONAL DRINKING WATER REGULATIONS. 42 U.S.C. SEC. 300G-3.

THESE PROVISIONS SHOULD BE READ IN LIGHT OF THE INTENTION OF CONGRESS THAT THE STATES ARE TO THE PRIMARY ENFORCERS OF THE ACT. THE EPA'S ROLE SHOULD BE ONE OF OVERSIGHT AND SUPERVISION, WITH BACK-UP ENFORCEMENT RESPONSIBILITY. FOR EXAMPLE, THE SECTION AUTHORIZING THE ADMINISTRATOR TO TEST AND INSPECT SYSTEMS SUBJECT TO THE ACT SHOULD BE READ AS PROVIDING THE ADMINISTRATOR WITH THE ABILITY TO MAKE SURE THROUGH SELECTIVE TESTING THAT THE STATES ARE PROPERLY IMPLEMENTING THEIR ENFORCEMENT PROGRAMS, TO SUPPLEMENT A STATE'S ENFORCEMENT PROGRAM WHILE IT IS IN THE PROCESS OF OBTAINING PRIMACY AND TO EMPOWER EPA TO ENTER SYSTEMS WHICH IT HAS REASON TO BELIEVE ARE VIOLATING ITS DRINKING WATER REGULATIONS. NOTHING IN THE ACT'S LEGISLATIVE HISTORY INDICATES ANY CONGRESSIONAL INTENT THAT EPA, FOR EXAMPLE, PERFORM SYSTEMATIC MONITORING OF ALL THE SYSTEMS IN STATES WHICH DO NOT HAVE PRIMACY.

ALSO, ACCORDING TO THE REPORT, EPA BELIEVES THE "ACT INTENDED THAT EPA WOULD HAVE PRIMARY ENFORCEMENT RESPONSIBILITY FOR DRINKING WATER SYSTEMS ON MOST INDIAN LANDS." THIS CONCLUSION PROBABLY STEMS FROM THE FACT THAT NO PROVISION IN THE ACT COVERS THE OPERATION OF A STATE-TYPE ENFORCEMENT PROGRAM ON THOSE LANDS. WE CANNOT AGREE WITH THIS CONTENTION EITHER: NOTHING IN THE ACT OR ITS LEGISLATIVE HISTORY SUGGESTS THAT EPA MUST ASSUME THIS RESPONSIBILITY. SECTION 300J-6 IS THE ONLY PART OF THE ACT WHICH REFERS TO INDIAN LANDS. IT READS IN ITS ENTIRETY:

"(C)(1) NOTHING IN THE SAFE DRINKING WATER AMENDMENTS OF 1977 SHALL BE CONSTRUED TO ALTER OR EFFECT THE STATUS OF AMERICAN INDIAN LANDS OR WATER RIGHTS NOR TO WAIVE ANY SOVEREIGNTY OVER INDIAN LANDS GUARANTEED BY TREATY OR STATUTE.

"(2) FOR THE PURPOSES OF THIS CHAPTER THE TERM 'FEDERAL AGENCY' SHALL NOT BE CONSTRUED TO REFER TO OR INCLUDE ANY AMERICAN INDIAN TRIBE, NOR TO THE SECRETARY OF THE INTERIOR IN HIS CAPACITY AS TRUSTEE OF INDIAN LANDS."

THIS SECTION CANNOT BE READ AS A MANDATE TO THE EPA TO CARRY OUT PRIMACY PROGRAMS ON INDIAN LANDS OVER WHICH STATES DO NOT HAVE JURISDICTION. UNDERSTAND FROM YOUR STAFF THAT AS A PRACTICAL MATTER, EPA ASSUMED PRIMARY RESPONSIBILITY ON INDIAN LANDS IN ACCORDANCE WITH AN INTERAGENCY AGREEMENT BETWEEN IT AND THE INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. IF SO, THE REPORT SHOULD SO STATE AND REFERENCES TO EPA'S STATUTORY RESPONSIBILITY TO OPERATE A STATE-TYPE ENFORCEMENT PROGRAM ON INDIAN LANDS SHOULD BE DELETED.

AS WE HAVE DISCUSSED WITH YOUR STAFF, AT THIS TIME WE SEE NO POINT IN ARGUING WITH EPA OVER ITS AUTHORITY. THE REPORT ADDRESSES PROBLEMS IN THE SAFE DRINKING WATER ACT WHICH MUST BE RESOLVED BY LEGISLATION AND THE ISSUE OF EPA'S ROLE CAN BE HANDLED IN THAT LEGISLATION.

THE BASIC POINT OF THE REPORT REMAINS: SEVERAL STATES HAVE REFUSED TO ASSUME PRIMARY ENFORCEMENT RESPONSIBILITY AND THE PEOPLE IN THOSE STATES PRESUMABLY DO NOT HAVE THE SAME DEGREE OF PROTECTION AS PEOPLE LIVING IN STATES WITH PRIMACY. COMPOUNDING THE PROBLEM, EPA HAS NEITHER THE CLEAR STATUTORY AUTHORITY NOR THE MONEY AND MANPOWER TO OPERATE THE KIND OF ENFORCEMENT PROGRAM EXPECTED OF THE STATES.

THE PROBLEM IS THAT CONGRESS HAS NOT EXPRESSED ITSELF CLEARLY CONCERNING STATES WHO WILL NOT OR CANNOT ASSUME PRIMACY. THE ACT ITSELF DOES NOT CONTAIN SUFFICIENT INCENTIVES OR DISINCENTIVES TO PROD THE STATES TO ACCEPT THAT RESPONSIBILITY. (IN FACT, YOUR STAFF INFORMALLY ADVISES US THAT MANY MORE STATES ARE EXPECTED TO DROP OUT OF THE PROGRAM.) CITING THE EXAMPLE, AMONG OTHERS, OF SECTION 176 OF THE CLEAN AIR ACT, 42 U.S.C. SEC. 7506, THE REPORT CONCLUDES THAT MORE DISINCENTIVES ARE NEEDED. HAVE NO LEGAL OBJECTION TO THIS RECOMMENDATION.

THE PROPOSED INTERIM MEASURE, AS SUGGESTED BY THE AGENCY, THAT EPA BE AUTHORIZED TO USE THOSE GRANT FUNDS WHICH NORMALLY WOULD HAVE BEEN ALLOCATED TO A STATE HAD IT ASSUMED PRIMACY IN ORDER TO OPERATE ITS OWN STATE-TYPE ENFORCEMENT PROGRAM MAY BE IMPLEMENTED ONLY IF CONGRESS ENACTS LEGISLATION SPECIFICALLY AUTHORIZING THE USE OF FUNDS APPROPRIATED FOR GRANTS FOR THAT PURPOSE. THUS, EPA WILL NEED DO MORE THAN REASSESS THE RESOURCES NEEDED FOR THE OPERATION OF THIS PROGRAM: IT WILL NEED TO SEEK SPECIFIC AUTHORITY TO USE THE FUNDS IN THIS MANNER. IN ADDITION TO THE SECOND RECOMMENDATION, THEREFORE, YOU MAY WISH TO SUGGEST TO THE CONGRESS THAT IT DECIDE, THROUGH THE ENACTMENT OF LEGISLATION, THE ROLE IT EXPECTS EPA TO ASSUME, AT LEAST UNTIL, IF EVER, THE DISINCENTIVES YOU RECOMMEND ARE ENACTED AND FULLY EFFECTIVE.

IN CONCLUSION, WHILE WE DISAGREE WITH SOME OF THE LEGAL POSITIONS TAKEN IN THE DRAFT REPORT, WE HAVE INFORMALLY ADVISED YOUR STAFF THAT, PROVIDED A NUMBER OF PARAGRAPHS ARE REWRITTEN, THE REPORT DRAWING, IN ITS ESSENCE, THE SAME CONCLUSIONS AND MAKING THE SAME RECOMMENDATIONS, CAN BE ISSUED. WE WILL BE HAPPY TO HELP MAKE ANY NECESSARY REVISIONS.