The Safe Drinking Water Act Amendments of 1986: Now a Tougher Act to Follow

Kenneth F. Gray

Editors' Summary: On June 19, 1986, President Reagan signed the Safe Drinking Water Act Amendments of 1986 into law. Among the many changes made by the Amendments, three stand out. First, EPA must issue drinking water standards for a significantly increased number of contaminants. Second, the Amendments strengthen the Act's enforcement provisions by giving EPA authority to issue administrative orders and by the addition of language providing that EPA "shall" take enforcement action in certain situations. Third, the Amendments establish two new groundwater protection programs. The author reviews these changes and some of the issues that EPA will face in implementing the Amendments, and concludes that the Safe Drinking Water Act will assume a more prominent role among the environmental protection statutes.

Mr. Gray is an attorney in the Washington D.C. office of Hunton & Williams. From July 1983 to September 1986 he worked for the Office of General Counsel at the U.S. Environmental Protection Agency where he counseled the Agency on Safe Drinking Water Act matters. The views are solely those of the author.

[16 ELR 10338]

After several years of effort, Congress passed the Safe Drinking Water Act (SDWA) Amendments of 1986, the first comprehensive set of amendments since the statute was originally enacted.¹ On June 19, 1986, President Reagan signed the Amendments into law.²

The SDWA is now a stronger statute from an environmental perspective and imposes a significant number of new burdens on the Environmental Protection Agency (EPA). With over 30 new deadlines for Agency action and more requirements in the offing for public water systems and underground injectors, the SDWA will be a tougher act to follow.

The Safe Drinking Water Act was passed by Congress in 1974 to control harmful contaminants in tap water and to protect underground sources of drinking water from improper underground injection. Tap water from public water systems (PWSs)³ must meet the national primary drinking water regulations (NPDWRs) which prescribe maximum contaminant levels (MCLs) or treatment techniques.⁴ There are approximately 60,000 public water systems serving residential communities that must meet all of the NPDWRs. EPA has also proposed to cover public water systems that do not serve residential communities, such as factories and schools.⁵ MCLs are to be set as close as feasible to recommended MCLs (unenforceable health goals, now "MCC Goals"). EPA has set MCLs for 23 contaminants or groups of contaminants to date; no treatment techniques have been prescribed.⁶ Compliance may be delayed through variances⁷ or exemptions⁸ under the Act if certain criteria are met. EPA has authorized 54 of 57 eligible states and territories to exercise primary enforcement responsibility under the Act to protect drinking water.⁹

MCLs have assumed independent significance beyond the SDWA. Several have been adopted as groundwater protection standards in EPA regulations under the Resource Conservation and Recovery Act (RCRA)¹⁰ for certain hazardous waste management units¹¹ and as cleanup standards where "relevant and appropriate" for Superfund sites under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).¹² In the proposed CERCLA reauthorization package, Congress is directing EPA to consider both MCLs and MCL health goals.¹³ In addition, Congress is now contemplating using MCLs as indicators of groundwater quality to trigger reassessment of pesticide use.¹⁴ It is also possible that the MCL goals (nonenforceable targets for the MCLs) will be used as the basis for calculating health-based water quality criteria under the Federal Water Pollution Control Act (FWPCA).¹⁵

Underground injection¹⁶ is regulated through a permit scheme. Would-be injectors must generally obtain a permit that imposes conditions to prevent endangerment of underground sources of drinking water.¹⁷ Among other requirements, permittees are not to cause the exceedance of MCLs in underground sources of drinking water.¹⁸

Although the Amendments make many changes in the law, three clearly stand out as most important and flow from Congress' deepest concerns over implementation of the Act. First, Congress believed more NPDWRs were desirable and amended the Act to require significantly more [16 ELR 10339] drinking-water standards (including two treatment techniques). Congress also generally restricted variances and exemptions. Second, to strengthen EPA's enforcement, the Act was changed to authorize new administrative orders and now provides that under certain circumstances, EPA "shall" take enforcement action. Third, Congress sought to further protect drinking-water aquifers through two new groundwater protection programs. These three areas — standard setting and compliance, enforcement, and groundwater protection — will be the most important and controversial for EPA, the states and public water systems, and other industries. This article discusses these changes and some of the fundamental legal and policy issues that will have to be resolved in implementing the Amendments.

Standard Setting and Compliance

New Primary Drinking-Water Regulations

EPA is now required to regulate no less than 83 contaminants by June 19, 1986.¹⁹ The 83 contaminants are identified in several EPA Advance Notices of Proposed Rulemaking referred to in the Amendments.²⁰ However, of the 23 contaminants now covered by the primary regulations, 22 are included in the 83 identified contaminants which EPA must regulate.²¹ As a result, EPA need regulate only 61 new drinking-water contaminants within three years to meet this requirement. EPA may substitute up to 7 contaminants for the 83 listed contaminants if it finds that regulating a substitute is more likely to be protective of public health.²² EPA also is directed to develop NPDWRs implementing two treatment techniques — filtration²³ and disinfection²⁴ — on public water systems. These will be the first treatment techniques under the Act.

The filtration requirement is unique because it is imposed by procedures wholly different than those required for other NPDWRs. States are to make case-by-case decisions for water systems on whether filtration is to be required, employing criteria developed by EPA.²⁵ Systems must comply with a filtration requirement wihin 18 months of a final decision.²⁶

Priority List and Regulation of New Contaminants

Beginning on January 1, 1988, EPA is also required to publish a triennial priority list of contaminants "which are known or anticipated to occur in public water systems and which may require regulation."²⁷ Within two years of the listing, EPA is to propose primary regulations for at least 25 contaminants; within three years of listing, regulations are to be promulgated.²⁸

The standard for listing has two components. First, EPA must consider contaminants that are "known or anticipated to occur" in public water systems. This is also the occurrence standard imposed by the Act for contaminants that must be regulated under NPDWRs.²⁹ Second, EPA is to consider those contaminants that "may require regulation."³⁰ In interpreting this second phrase, EPA will likely look to contaminants that may have an adverse effect on human health and the significance of the health risks in drinking water.

EPA is to publish the priority list every three years, but the statute does not specify a date after which the priority list need not be published and there is no legislative history addressing whether Congress intended this requirement to continue indefinitely. It is arguably consistent with the goals of the Act to publish the priority list and regulations only as long as EPA finds contaminants that justify regulation under NPDWRs.

In preparing the lists, EPA is to look to, among other sources, hazardous substances under CERCLA and registered pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).³¹ EPA can be expected to select contaminants that appear most frequently in drinking water and groundwater, and for which there is adequate toxicological information from which to postulate potential adverse health effects. Pesticides and hazardous substances under CERCLA, including hazardous waste under RCRA, would often meet these requirements and would probably be included on the lists even without Congress' suggestion.

Changes to Statutory Standards Under Primary Regulations

Beyond the rulemakings for the 83 contaminants and the priority list rulemakings, it is clear that EPA retains the authority to establish MCL goals and NPDWRs for any contaminant that meets the statutory standard. However, Congress changed several of the key regulatory standards under which EPA regulates drinking-water contaminants.³²

The authority to regulate contaminants was amended to add that regulated contaminants must be "known or anticipated to occur in drinking water."³³ This addition of occurrence criteria may not significantly affect how the EPA [16 ELR 10340] chooses contaminants for regulation to the extent that these criteria are consistent with the criteria now used by the Agency.³⁴

Changes to the definition of feasibility in setting the MCL may rank among the more important of the Amendments. Feasibility in setting the MCL is now to be determined with use of best available technology (BAT), considering cost, rather than using best generally available technology, considering cost. Moreover, the BAT must have been examined for efficacy under field conditions, not merely in the laboratory.³⁵

The Senate Committee Report explains that the change to BAT was made to expedite standard setting, avoiding any limitations imposed by a required finding of "general" availability, and to assure that the standards "reflect the full extent of current technological capability."³⁶ The House Committee Report tied together the change in BAT and the requirement of field testing. The Report notes the deletion of "general" availability and states "[i]t is sufficient that the technology has been examined for its efficacy under field conditions and not solely under laboratory conditions."³⁷

The more significant of these changes is probably the deletion of general availability: EPA need not show that the best technology is generally available, only that it is available. This could encourage the Agency to select technologies that are not as widely affordable for public water systems.

Granular activated carbon (GAC) is now deemed feasible by statute for control of synthetic organic chemicals. Any other means found to be the "best available" must be at least as effective in reducing synthetic organic chemicals.³⁸ This amendment is significant in view of the fact that the first MCL rulemaking published after the Amendments is expected to address synthetic volatile organic chemicals, and many other such chemicals are likely to be regulated. The first BAT finding may set the stage for MCL decisions to follow, including those on trihalomethanes — synthetic volatile organic chemicals found in virtually all systems as a result of chlorine disinfection.³⁹

At the same time, Senator Durenberger, the Senate sponsor, expressed his view that feasibility for BAT (and GAC) is to be determined with reference to treatment technology affordable for large public water systems.⁴⁰ This view is consistent with previous legislative history.⁴¹ However, in the Senator's view, weighing costs and benefits under the Act and setting standards only where EPA can quantify benefits that outweigh costs would not be lawful.⁴²

Variances and Exemptions to MCLs

Public water systems that cannot comply with national primary drinking water standards because their raw water sources are highly contaminated or because of compelling factors may be eligible for a variance⁴³ or exemption.⁴⁴ Although the fundamental criteria for granting variances and exemptions have not been changed significantly, additional restrictions have been placed on systems that receive them.

The statute now states that a variance may only be issued after a system has applied the best available technology, treatment techniques, or other means, which the Administrator finds are available considering cost.⁴⁵ This BAT finding for a variance is generally defined in the same terms as the BAT finding for setting the MCL under § 1412 and is to be promulgated at the same time as the MCL. However, unlike the BAT finding for setting MCLs, EPA does not appear to be precluded by statute from selecting a technology that has been examined only in the laboratory. Also, unlike the NPDWRs, GAC is not specified by statute as the benchmark technology for volatile organic compounds under variances. Perhaps most importantly, the BAT finding for a variance may vary depending on the number of persons served by the system or for other physical conditions related to engineering feasibility, including costs of compliance with MCLs as considered appropriate by the Administrator.⁴⁶

The requirement that a system install BAT as a condition of eligibility for a variance raises several issues. Only two variance regulations have been promulgated to date.⁴⁷ In these regulations, EPA explicitly provided that the defined best generally available technology need not be installed if a system could show that the technology was not available and effective under its peculiar circumstances.⁴⁸ Therefore, the statute now raises a question concerning the Agency's ability to grant a variance where a system has not installed the specified technology. In addition, EPA may at some point be called on to account for the fact that the best technology specified for compliance before the 1986 Amendments was best generally available technology rather than best available technology.⁴⁹

[16 ELR 10341]

The variance technology identified to date has been based on availability to large systems. This is true for trihalomethanes and fluoride (for which technologies are explicitly identified in the Code of Federal Regulations), as well as for the other contaminants under the Interim Regulations (for which EPA states technologies were identified in the background documents to the 1975 Interim Regulations rulemaking).⁵⁰ As noted, § 1415 BAT may vary depending on the listed factors, including system size and number of persons served.⁵¹ It will be intriguing to see whether EPA selects the same BAT for large systems under both § 1412 and § 1415. Because the amendment authorizing EPA to vary BAT was specifically added to allow the Administrator to select different BAT for smaller systems, the Agency may well use this authority to choose different BAT for these systems.

Under the Act, exemptions are available for systems that are unable to comply with NPDWRs for compelling factors, which may include economic factors.⁵² However, their availability is now restricted by the fact that they are effective for one year, with the possibility of an extension for no longer than three years. The extension of three years is available only if the system establishes that it needs capital or financial assistance or is regionalizing and is "taking all practicable steps" to meet the standard.⁵³ Small systems are now able to obtain repeated extensions if they require financial assistance and were taking all practicable steps.⁵⁴

Enforcement

Congress has strengthened EPA's ability to take enforcement action for violation of both the drinking water standards and underground injection control (UIC) requirements. The new provisions add administrative enforcement orders and penalties,⁵⁵ significantly increase civil penalties,⁵⁶ and simplify the process EPA uses to take enforcement action where states with primary enforcement responsibility have failed to take appropriate action.⁵⁷ Public notification of PWS violations as well as monitoring, reporting, and recordkeeping violations are now subject to civil and administrative actions instead of criminal fines.⁵⁸

It is clear that Congress desires more enforcement action by EPA. In response, the Agency expects to issue compliance orders and take more civil actions and is beginning to pressure states to reduce the number of violations.

The resolution of two major issues will have an important impact on the administration of EPA's enforcement program. The first is whether Congress has made EPA enforcement mandatory or unremedied violations. The second issue addresses the procedures required for enacting administrative penalties for underground injection violations.

Mandatory Enforcement

The question of whether EPA must take enforcement action against violations unremedied by states with primary enforcement responsibility arises for both UIC and PWS programs. In assessing whether Congress has imposed mandatory enforcement on the Agency and its likely impact, it is useful to understand how the Amendments change the conditions under which enforcement may be taken.

Under the Act, enforcement provisions are triggered whenever the EPA "finds" a violation.⁵⁹ A "finding" normally implies both knowledge and a pronouncement. In many cases, EPA will have knowledge of violations, because violations must be reported to the states who must in turn report these violations and state enforcement action (or lack thereof) to the Agency.⁶⁰ Thus, a question arises whether EPA has the discretion to select the violations of which it is aware for a "finding." Nothing in the SDWA or legislative history suggests that EPA must make a finding for every violation it discovers.

In making a finding, the EPA is to notify the state and the suspected violator.⁶¹ After 30 days, where states have primary enforcement authority, EPA is to determine whether the state has commenced "appropriate enforcement action."⁶² EPA has yet to announce what it considers appropriate enforcement action in given cases. For relatively minor violations, one could argue that formal enforcement is not appropriate given other, higher priority violations and limited state resources. In any event, after notice, appropriate state enforcement action would often include information gathering to determine whether there is still a violation and if so, whether steps are being taken to correct the violation. There is no statutory deadline by which EPA must decide whether appropriate enforcement action has been taken.

If beyond the thirtieth day after notification, the state has not commenced appropriate enforcement action, the Amendments provide that the Administrator "shall" issue a compliance order (which may include penalties for UIC [16 ELR 10342] violators) or commence a civil action.⁶³ "Shall" replaced "may" in this provision. This change and the legislative history⁶⁴ may provide ammunition for persons to argue that the Agency is now subject to mandatory enforcement duties.⁶⁵ However, a significant majority of courts interpreting similar language under the FWPCA have held that EPA and the Department of Justice retain their enforcement discretion.⁶⁶

The issue of mandatory enforcement may be raised by a citizen suit against the Agency to require enforcement against identified violators. Direct citizen suits against violators under the FWPCA are still increasing and may stimulate suits under the SDWA, although monetary penalties — a major motivator of FWPCA suits — are not available through SDWA citizen suits.⁶⁷

Procedures for UIC Administrative Orders

Under the Amendments, EPA may now issue PWS and UIC administrative orders as well as commence civil enforcement actions,⁶⁸ Under PWS authorities, EPA may issue a compliance order but may not exact penalties administratively in the first instance.⁶⁹ Penalties may, however, be imposed for violation of the PWS compliance order and EPA is to follow Administrative Procedure Act (APA) § 554 procedures.⁷⁰

By contrast, UIC administrative orders themselves may include penalty assessments of up to $125,000 for violations and may order compliance.⁷¹ Procedures for issuing the orders are explicitly excused from APA hearing requirements but "shall provide a preamble opportunity to be heard and to present evidence."⁷²

The question not answered by the statute is what specific procedures must be followed in issuing administrative orders. The easy answer is that the UIC orders must be issued allowing for constitutional protections. The harder task is determining what minimum procedural protections are required by constitutional due process mandates.

EPA now plans to promulgate regulations establishing procedures for issuing UIC administrative orders. These procedures should address such questions as right to a disinterested decisionmaker, opportunity for cross-examination, and which other formalities of adjudicatory hearings should be available. Attorneys representing underground injectors likely will take a keen interest in these procedures.

Groundwater Programs

There are two new programs established to protect groundwater resources under the Amendments. Under one program, states are to develop wellhead protection programs to prevent contamination of groundwater supplying public water systems. There is also a grant program for state and local programs for protecting critical aquifer protection areas of sole source aquifers.

State Wellhead Protection Programs

Within three years of enactment, states are to submit to EPA a program to protect wellhead areas from contaminants that may have any adverse effect on health.⁷³ Wellhead protection areas are defined as the surface and subsurface area that may be contaminated surrounding a water well or wellfield supplying a public water system.⁷⁴ States are to determine the extent of the wellhead protection areas with the assistance of EPA guidance.⁷⁵ Significantly, if a state does not submit a program, no federal program is imposed.

States may receive grants for the development and implementation of wellhead protection programs. These programs must include six different provisions specified in the [16 ELR 10343] Act. Among other things, the programs must identify the wellhead protection areas based on available hydrogeologic information and potential man-made sources of contaminants that may have any adverse effect on the health of persons, and must contain, as appropriate, technical and financial assistance, control measures, and education programs to protect the water supply in wellhead protection areas.⁷⁶ The state program must also include a description of the duties of public agencies and public water supply systems, contingency plans for the provision of alternate drinking water supplies in the event of contamination, and a requirement that consideration be given to all potential sources of contaminants within the expected wellhead area of new water wells serving public water systems.⁷⁷ In addition, states with more than 2,500 active wells using annular injection (defined as reinjection of brines associated with the production of oil or gas) are to certify that a protection program exists and is being adequately enforced.⁷⁸

The Amendments expressly provide that the wellhead protection provisions neither authorize nor require federal, state, or local governments to apportion, allocate, or otherwise regulate the use of ground or surface waters.⁷⁹ This clarification was added to address the concern that the wellhead protection provisions would alter existing water rights and priorities. Of course, the provisions also do not limit the existing authority of states and localities to manage and protect surface water and groundwater.⁸⁰

Federal agencies with jurisdiction over potential sources of contaminants identified by state programs are to be subject to and comply with all requirements of state programs in the same manner as other persons, subject to Presidential exemption.⁸¹ Exemptions may be granted if the President determines it to be in the paramount interest of the United States, but may not be granted due to lack of an appropriation unless the President has requested the appropriation and Congress failed to appropriate necessary funds.⁸²

State programs are to be reviewed by the Administrator and disapproved if "not adequate to protect public water systems."⁸³ If not disapproved within nine months of submission, a program is deemed approved.⁸⁴ Legislative history is clear that states are to have "maximum flexibility" in determining what type of program to develop.⁸⁵ It provides that a state is not required to develop a regulatory program imposing control measures unless it chooses to do so. As long as a state program contains one of the elements described in the statute (i.e., technical or financial aid, education programs, control measures) the statutory standard is arguably met. Thus, a program that merely involved education programs arguably satisfies the statutory element.⁸⁶ Although legislative history states that the Administrator is authorized to disapprove a state's program if it does not include one or more of the enumerated elements, disapproval is to be "used judiciously."⁸⁷ Despite the seemingly mandatory language of the statute with respect to the submission of state programs, the legislative history explains that the only penalty for failure to develop an adequate plan is that states are not eligible for federal funds to implement the program, beginning three years after enactment (funds for development of a program are still available).⁸⁸

There was fear that states could be compelled to adopt wellhead protection programs through citizen suits or a federal requirement because the Amendments provide that states "shall adopt and submit" a program that "shall" include the enumerated elements.⁸⁹ Additional legislative history should help to eliminate this fear. Although citizen suits are authorized against any person, including a state, who is alleged to be in violation of this title,⁹⁰ legislative history provides that states may choose not to resubmit a disapproved program and that "there is no provision in this section for a citizen suit to enforce the requirements to define wellhead areas, identify sources of contaminants or develop plans to protect groundwater resources."⁹¹

The scope of the wellhead program that EPA outlines as minimum will initially determine the impact of this new authority. The Agency will have to assess which minimum requirements are necessary for approved state programs to adequately protect public water systems and wellhead areas. Fostered by EPA grants, many states are now developing their own state groundwater protection strategies.⁹²

However, there is a tension between the statute's broad goals and ambitious expectations for aggressive state programs and the flexibility that is to be accorded states in determining what type of program, if any, to adopt. For example, the definition of the wellhead protection area — crucial to the whole scheme — is to be "determined by the state."⁹³ States "may use" EPA technical guidance in making such determinations.⁹⁴ Ultimately, states will shape the final nationwide wellhead protection scheme. States that wish to aggressively protect groundwater could implement measures to control sources of groundwater contamination and may affect siting of new facilities or expansion of existing facilities. On the other hand, many state programs may be minimum education or assistance programs.

In any event, states face daunting tasks in identifying wellhead protection areas and defining the hydrogeology [16 ELR 10344] for each wellhead and all man-made sources of contaminants.⁹⁵ Many states will have thousands of wellhead areas; hydrogeology is a complicated science; and identifying all man-made sources of contaminants may be exceptionally time consuming. These activities are also resource intensive.

States may well be concerned about financial assistance from the Agency. EPA is authorized to make grants of 50-90 percent of the costs incurred by a state in developing and implementing the state programs⁹⁶ The Agency probably will have to establish criteria for determining the percent of the grant allowed. In addition, EPA may have to determine how grants will be allocated among the states. This allocation could be based on the projected number of wellhead areas, the population using groundwater, vulnerability to contamination, or other related criteria. States will have a clear interest in any EPA criteria for grant allocation.

The state wellhead protection programs adopted by Congress were a compromise designed to capitalize on state and local land use authorities and replaced the more aggressive federal program that was initially passed by the House. There is a concern that the state programs, if unsuccessful, may provide ammunition to those who favor stricter schemes with a stronger federal role.

Critical Aquifer Protection Area Demonstration Program

This demonstration program was enacted primarily as a grant program to assist states and localities in protecting designated sole source aquifers from significant contamination. A nationwide program was not envisioned. But like the wellhead protection program, the aquifer demonstration program provisions allow a minimum state and local scheme which EPA may approve and then fund. And, as discussed below, there may be overlap in the scope and activities of the two programs.

Demonstration programs are to protect critical aquifer protection areas located within sole or principal source aquifers.⁹⁷ Under EPA regulations, sole or principal source is defined broadly. Although to date only 21 aquifers have been designated (and almost as many proposed) as sole source aquifers, the possibility of grants may be expected to encourage more applications.

Under the Amendments, EPA is to establish criteria for identifying critical aquifer protection areas (CAPAs) by rule.⁹⁸ State, municipal, or local governments may apply for selection of any aquifer for a demonstration program if they have jurisdiction over the CAPA and submit an application meeting several requirements.⁹⁹ These include proposing boundaries for the CAPA, designating a planning entity, and preparing a hydrogeologic assessment of the area together with a comprehensive management plan.¹⁰⁰

The comprehensive management plan is the key to the CAPA program. It must contain certain elements including identification of existing and potential sources of contamination and specific actions and management practices to be implemented in the critical protection area to prevent adverse impacts on groundwater quality.¹⁰¹ It also may include limits on federal, state, and local government financially assisted projects which may contribute to degradation or loss of surface infiltration; consideration of specific techniques including clustering and transfer of development rights; and establishment of state institutions to assist a development transfer credit system.¹⁰² Plans approved under FWPCA § 208 to protect a designated sole source aquifer are to be considered comprehensive management plans.¹⁰³

In distinguishing mandatory and permissive elements for the plan, Congress has made it clear that grants are not to be handed out willy-nilly. However, the extensiveness of the state programs will turn in large measure on EPA's criteria for identifying CAPAs and the Agency's view of what the comprehensive management plan must contain. Congress expressed its general intent in legislative history that states and localities were to retain substantial discretion in land use management.¹⁰⁴

According to some in Congress, the purpose of the demonstration program's authority was not to restrict development,¹⁰⁵ but there is also legislative history stating that the grants were intended to allow land acquisition by state and local governments for the protection of aquifers.¹⁰⁶ It is hard to avoid restricting development if land is no longer available for development. Land acquisition may not be a high priority for Agency funding, given other possible demonstrations that might be more innovative in protecting groundwater. In any event, a comprehensive plan could include restrictions on development and is explicitly authorized to contain "transfer of development rights" and a "development transfer credit system" which may facilitate such development restrictions.¹⁰⁷

If a CAPA program is approved, EPA may provide grants of up to 50 percent of the costs of implementing the plan, up to $4 million per aquifer per year.¹⁰⁸ The possibility of approved but unfunded demonstration programs is not an appetizing thought to either EPA or potential applicants. EPA may have to devise an allocation scheme to distribute grants as fairly as possible among worthy applicants.

Several legislators identified worthy candidates in their home states. Legislators representing New York State made it clear that the statute was intended to "enable Suffolk and Nassau counties and New York State to obtain parts [16 ELR 10345] of these lands."¹⁰⁹ A Senator from Washington explained that the program would authorize funds for "pollution abatement measures" (sewering) for protecting the Spokane-Rathdrum aquifer.¹¹⁰ These are good examples of the diversity of demonstration programs that may be expected. However, grants may not be used to fund activities funded under other environmental laws.¹¹¹

The relationship between the wellhead protection program and the CAPA demonstration program is an issue for EPA and states that will be addressed in both programs. They have many common elements including hydrogeologic mapping and assessment of sources of contamination, plans for protection of the aquifer, and minimum federal criteria and application review. Could a state demonstration program also serve as a wellhead protection program? There is likely to be direct overlap between any defined critical aquifer protection area and the wellhead protection areas. Alternatively, a demonstration might be the first step in developing a wellhead protection program.

Conclusion

The Amendments have already provoked major activity by EPA's Offices of Drinking Water and Groundwater Programs as they gear up for the many rulemakings that must be completed under tight deadlines. The Office of Drinking Water, in particular, will face challenges as it more than triples the number of NPDWRs in the next three years. The large majority of these NPDWRs will establish MCLs which may be used as groundwater protection standards under RCRA or FIFRA or as groundwater cleanup standards under CERCLA. They will therefore be of interest to practitioners who follow these statutes. Manufacturers and processors of chemicals that may be covered by MCLs will also have an interest in watching the Federal Register for SDWA notices. Obviously, public water systems also will face new requirements for monitoring and controlling for additional drinking-water contaminants.

It is difficult to predict the impact of the two new groundwater authorities. It is possible that they will mushroom into major programs aggressively controlling activities in wellhead protection areas and CAPAs. More likely, the programs will be local in scope and highly varied in impact. For better or worse, they may be used to implement the growing "not-in-my-backyard" movement.

Although often overshadowed by other environmental legislation, the Safe Drinking Water Act Amendments of 1986 will make the SDWA more prominent. The actions by the EPA over the next several years in implementing the Amendments will redefine the Act's significance in the field of environmental law.

1. 42 U.S.C. §§ 300f-300j-11, ELR STAT. 41101.

2. PUB. L. NO. 99-339, 22 WEEKLY COMP. PRES. DOC. 831 (June 19, 1986).

3. Public water systems are defined in SDWA § 1401(4) as systems that serve at least 15 service connections (where one home is one service connection) or regularly serve at least 25 persons. 42 U.S.C. 300f(4), ELR STAT. 41103.

4. SDWA § 1401(1), 42 U.S.C. § 300f(1), ELR STAT. 41103.

5. See 50 Fed. Reg. 46902, 46918 (1985).

6. 40 C.F.R. § 1411, subparts B & G.

7. SDWA § 1415, 42 U.S.C. § 300g-4, ELR STAT. 41106.

8. SDWA § 1416, 42 U.S.C. § 300g-5, ELR STAT. 41107.

9. SDWA § 1413, 42 U.S.C. § 300g-2, ELR STAT. 41105.

10. 42 U.S.C. §§ 6901-6987, ELR STAT. 42001.

11. 40 C.F.R. § 264.94(a)(2).

12. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941; 40 C.F.R. § 300.68, ELR REG. 47461.

13. The Senate and House conferees reached an agreement on the CERCLA reauthorization bill on October 2, 1986. President Reagan has threatened to veto the bill.

14. 132 CONG. REC. H7069 (daily ed. Sept. 17, 1986).

15. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

16. SDWA § 1421, 42 U.S.C. § 300h, ELR STAT. 41109.

17. 40 C.F.R. §§ 144-146.

18. SDWA § 1421, 42 U.S.C. § 300h, ELR STAT. 41109.

19. SDWA § 1412(b)(1), 42 U.S.C. § 300g-1(b)(1), ELR STAT. 41103.

20. H.R. CONF. REP. NO. 575, 99th Cong., 2d Sess., at 29-30 (1986), reprinted in 132 CONG. REC. H2333 (daily ed. May 5, 1986) [hereinafter CONF. REP.].

21. The category trihalomethanes is among the 83 listed contaminants.

22. SDWA § 1412(b)(2), 42 U.S.C. § 300g-1(b)(2), ELR STAT. 41104.

23. SDWA § 1412(b)(7)(C), 42 U.S.C. § 300g-1(b)(7)(C), ELR STAT. 41104.

24. SDWA § 1412(b)(8), 42 U.S.C. § 300g-1(b)(8), ELR STAT. 41104.

25. SDWA § 1412(b)(7)(C)(i), (ii), 42 U.S.C. § 300g-1(b)(7)(C)(i), (ii), ELR STAT. 41104.

26. SDWA § 1412(b)(7)(C)(ii), 42 U.S.C. § 300g-1(b)(7)(C)(ii), ELR STAT. 41104.

27. SDWA § 1412(b)(3)(A)-(D), 42 U.S.C. § 300g-1(b)(3)(A)-(D), ELR STAT. 41104.

28. SDWA § 1412(b)(3)(C), (D), 42 U.S.C. § 300g-1(b)(3)(C), (D), ELR STAT. 41104.

29. SDWA § 1412(b)(3)(A), 42 U.S.C. § 300g-1(b)(3)(A), ELR STAT. 41104.

30. Id.

31. 7 U.S.C. §§ 136-136y, ELR STAT. 42301.

32. Before amendment, the Act provided that the Administrator "shall by rule establish recommended maximum contaminant levels for each contaminant which, in his judgment … may have any adverse effect on the health of persons." SDWA § 1412(b)(1)(B), amended by SDWA § 1412(b)(3)(A). It provided that for each RMCL, EPA "shall publish proposed [NPDWRs]" and "shall promulgate such … regulations …." SDWA § 1412(b)(2), amended by SDWA § 1412(b)(3)(A). It now provides that the Administrator "shall publish maximum contaminant level goals and promulgate [national primary drinking water] regulations for each contaminant … which, in the judgment of the Administrator, may have any adverse effect on the health of persons …." SDWA § 1412(b)(3)(A).

33. SDWA § 1412(b)(3)(A), 42 U.S.C. § 300g-1(b)(3)(A), ELR STAT. 41104.

34. For example, in its final rule promulgating RMCLs for volatile organic chemicals, EPA looked to whether the contaminant had occurred in drinking-water or whether there was a significant potential for drinking-water contamination. 50 Fed. Reg. 46880, 46883 (1985). See also 50 Fed. Reg. 46936, 46942-43 (1985) for a proposal of RMCLs for organics, inorganics, and microbials and a more detailed discussion of types of occurrence data and their significance.

35. SDWA § 1412(b)(5), 42 U.S.C. § 300g-1(b)(5), ELR STAT. 41104.

36. S. REP. NO. 56, 99th Cong., 1st Sess., at 6 (1985) [hereinafter S. REP.].

37. H.R. REP. NO. 168, 99th Cong., 1st Sess. (1985) [hereinafter H.R. REP.].

38. SDWA § 1412(b)(5), 42 U.S.C. § 300g-1(b)(5), ELR STAT. 41104.

39. The Conference Report makes clear that the Agency is to select a GAC system based on design parameters, such as grade of carbon used, carbon contact time and frequency of regeneration chemical characteristics of a particular contaminant, and effectiveness of contaminant removal (suggested to be 90-99 percent removal). CONF. REP., supra note 20, reprinted in 132 CONG. REC. H2334 (daily ed. May 5, 1986).

40. 132 CONG. REC. S6287 (daily ed. May 21, 1986).

41. H.R. REP. NO. 1185, 93d Cong., 1st Sess., at 18 (1974).

42. 132 CONG. REC. S6287 (daily ed. May 21, 1986). But see the statement of Senator Phillip Hart in the legislative history to the 1974 Act endorsing the weighing of costs against health risks. 132 CONG. REC. S20220, 20240 (daily ed. Nov. 26, 1974), reprinted in LEGISLATIVE HISTORY OF THE SAFE DRINKING WATER ACT, at 890.

43. SDWA § 1415, 42 U.S.C. § 300g-4, ELR STAT. 41106.

44. SDWA § 1416, 42 U.S.C. § 300g-5, ELR STAT. 41107.

45. SDWA § 1415(a)(1)(A), 42 U.S.C. § 300g-4(a)(1)(A), ELR STAT. 41106.

46. Id.

47. Variance regulations for trihalomethanes, 40 C.F.R. § 142.60, and fluoride, 40 C.F.R. § 142.61, were promulgated relatively recently by EPA.

48. 40 C.F.R. §§ 142.60(b), 142.61(b).

49. See 40 C.F.R. §§ 142.60(a), 142.61(a).

50. 45 Fed. Reg. 50833, 50835 (1980); 51 Fed. Reg. 23468, 23470 (1986).

51. Interestingly, in selecting BAT for MCLs, there appears to be no bar on the Administrator's consideration of physical conditions related to engineering feasibility or different costs that may flow from those conditions, as long as the Administrator looks to large systems in his assessment of those costs and conditions. One could even argue that EPA's determination of "availability" for MCLs requires such an analysis.

52. SDWA § 1416(a)(1), 42 U.S.C. § 300g-5(a)(1), ELR STAT. 41107.

53. SDWA § 1416(b)(2)(B), 42 U.S.C. § 300g-5(b)(2)(B), ELR STAT. 41108.

54. SDWA § 1416(b)(2)(C), 42 U.S.C. § 300g-5(b)(2)(C), ELR STAT. 41108. The statute says taking all practicable steps to meet the requirements of subparagraph (B). It is unclear whether the system has to reestablish its entitlement to exemption under Subparagraph (B) (e.g., showing of need for financial assistance) or merely that it is taking "all practicable steps" to meet the standard. SDWA § 1416(b)(2)(B), (C), 42 U.S.C. § 300g-5(b)(2)(B), (C), ELR STAT. 41108.

55. SDWA §§ 1414(g), 1423(c), 42 U.S.C. §§ 300g-3, 300h-2(c), ELR STAT. 41106, 41111.

56. SDWA §§ 1414(b), 1423(b), 1423(c), 42 U.S.C. §§ 300g-3(b), 300h-2(b), 300h-2(c), ELR STAT. 41105, 41111.

57. SDWA §§ 1414(a), 1423(a), 42 U.S.C. §§ 300g-3(a), 300h-2(a), ELR STAT. 41105, 41110.

58. SDWA §§ 1414(c), (g), 1445(c), 42 U.S.C. §§ 300g-3(c), (g), 300j-4(c), ELR Stat. 41105, 41120.

59. SDWA §§ 1414(a)(1)(A), (B), 1423(a)(1), (2), 42 U.S.C. §§ 300g-3(a)(1)(A), (B), 300h-2(a)(1), (2), ELR STAT. 41105, 41110.

60. 40 C.F.R. §§ 141.31, 146.

61. SDWA §§ 1414(a), 1423(a), 42 U.S.C. §§ 300g-3(a), 300h-2(a), ELR STAT. 41105, 41110.

62. SDWA §§ 1414(a)(1)(B), 1423(a)(1), 42 U.S.C. §§ 300g-3(a)(1)(B), 300h-2(a)(1), ELR STAT. 41105, 41110.

63. SDWA §§ 1414(a)(1)(A), (B), 1423(a)(1), (2), 42 U.S.C. §§ 300g-3(a)(1)(A), (B), 300h-2(a)(1), (2), ELR STAT. 41105, 41110.

64. CONF. REP., supra note 20, reprinted in 132 CONG., REC. H2335 (daily ed. May 5, 1986); H.R. REP., supra note 37; S. REP., supra note 36.

65. One could make an argument that under Heckler v. Chaney, 105 S. Ct. 1649, 15 ELR 20335 (1985), the presumption against reviewability of enforcement decisions has been rebutted by "circumscribing [the] agency's power to discriminate among issues or cases it will pursue." Id. at 1657. In signing the Amendments, the President stated:

The principal of prosecutorial discretion is an essential ingredient in the execution of the laws. I believe that the Congress cannot bind the Executive in advance and remove all prosecutorial discretion without infringing on the powers of the Executive. It is unrealistic to expect that the EPA will ever have the resources or the need to take formal enforcement action against each and every violation of the Act, without regard to how trivial the violation or unfair an enforcement action would be.

22 WEEKLY COMP. PRES. DOC. 832 (June 19, 1986).

66. Sierra Club v. Train, 557 F.2d 485, 488-91, 7 ELR 20670 (5th Cir. 1977); see also Zemansky v. EPA, Civ. A-81-274, slip op., 16 ELR 20862 (D. Alaska Apr. 7, 1986); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 902 n. 11, 13 ELR 20942 (5th Cir. 1983); State Water Control Board v. Train, 559 F.2d 921, 927 n. 34, 7 ELR 20571 (4th Cir. 1977); National Wildlife Federation v. Ruckelshaus, 15 ELR 20845 (D.N.J. Aug. 5, 1983); Caldwell v. Gurley Refining Co., 533 F. Supp. 252, 255-57, 12 ELR 20759 (E.D. Ark. 1982); O'Leary v. Moyer's Landfill, Inc., 516 F. Supp. 517, 11 ELR 21005 (E.D. Pa. 1981) (Exhibit A to Docket No. 4); Lanza Construction Co. v. EPA, Civ. No. 80-72895 (E.D. Mich. Apr. 27, 1981), slip op. at 9 (Exhibit A to Docket No. 7); Goodyear v. LeCraw, 15 ELR 20846 (S.D. Ga. June 27, 1980) (interpreting parallel language of FWPCA § 404; Montgomery Environmental Coalition v. Fri, Civ. No. 1307-73 (D.D.C. Dec. 12, 1973), noted at Montgomery Environmental Coalition v. Washington Suburban Sanitary Commission, 607 F.2d 378, 380 n.5 (D.C. Cir. 1979), and committee for Consideration of Jones Falls Sewage System v. Train, 387 F. Supp. 526, 529-30 n.3 (D. Md. 1975), and O'Leary supra, 11 ELR 21005; cf. Greene v. Costle, 577 F. Supp. 1225, 14 ELR 20394 (W.D. Tenn. 1983); South Carolina Wildlife Federation v. Alexander, 457 F. Supp. 118, 8 ELR 20757 (D.S.C. 1978); Illinois v. Hoffman, 425 F. Supp. 71 (S.D. Ill. 1977); United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 5 ELR 20308 (D. Ariz. 1975).

67. Attorneys fees are available for citizen suits under the SDWA as under other environmental statutes. SDWA § 1449(d), 42 U.S.C. § 300j-8(d), ELR STAT. 41121.

68. SDWA §§ 1414(g), 1423(c), 42 U.S.C. §§ 300g-3(g), 300h-2(c), ELR STAT. 41106, 41111.

69. SDWA § 1414(g)(2), (3), 42 U.S.C. § 300g-3(g)(2), (3), ELR STAT. 41106, 41111.

70. SDWA § 1414(g)(3), 42 U.S.C. § 300g-3(g)(2), ELR STAT. 41106.

71. SDWA § 1423(c)(1), (3), 42 U.S.C. § 300h-2(c)(1), (3), ELR STAT. 41111.

72. SDWA § 1423(c)(3)(A), 42 U.S.C. § 300h-2(c)(3)(A), ELR STAT. 41111.

73. SDWA § 1428(a), 42 U.S.C. § 300h-7(a), ELR STAT. 41114. Under the SDWA, EPA must also establish NPDWRs for contaminants that may have any adverse effect on health. EPA has not yet announced whether state wellhead protection programs must provide protection for all contaminants regulated under the NPDWRs.

74. SDWA § 1428(e), 42 U.S.C. § 300h-7(e), ELR STAT. 41114. See supra note 3 for the SDWA's definition of public water system.

75. SDWA § 1428(e), 42 U.S.C. § 300h-7(e), ELR STAT. 41114.

76. SDWA § 1428(a)(1)-(6), 42 U.S.C. § 300h-7(a)(1)-(6), ELR STAT. 41114.

77. Id.

78. SDWA § 1428(i), 42 U.S.C. § 300h-7(i), ELR STAT 41114.

79. SDWA § 1428(j), 42 U.S.C. § 300h-7(j), ELR STAT. 41114.

80. CONF. REP., supra note 20.

81. SDWA § 1428(h), 42 U.S.C. § 300h-7(h), ELR STAT. 41114.

82. Id.

83. SDWA § 1428(c), 42 U.S.C. § 300h-7(c), ELR STAT. 41114.

84. Id.

85. CONF. REP., supra note 20, reprinted in 132 CONG. REC. H2338 (daily ed. May 5, 1986).

86. Id.

87. Id.

88. Id. See also SDWA § 1428(d), 42 U.S.C. § 300h-7(d), ELR STAT. 41114.

89. SDWA § 1428(a), 42 U.S.C. § 300h-7(a), ELR STAT. 41114.

90. SDWA § 1449(a)(1), 42 U.S.C. § 300j-8(a)(1), ELR STAT. 41121.

91. 132 CONG. REC. S6290 (daily ed. May 21, 1986) (statement of Sen. Durenberger); 131 CONG. REC. S6293-94 (daily ed. May 21, 1986) (statement of Sen. Bentsen). But cf. "[T]he section's exposure to the citizen suit provisions of the Act expands even further the opportunity for environmental activities [sic] to sue in Federal Court …." 132 CONG. REC. S6297 (daily ed. May 21, 1986) (statement of Sen. Helms).

92. Grants have been issued under FWPCA § 106.

93. SDWA § 1428(e), 42 U.S.C. § 300h-7(e), ELR STAT. 41114.

94. Id.

95. SDWA § 1428(a), 42 U.S.C. § 300h-7(a), ELR STAT. 41114.

96. SDWA § 1428(k), 42 U.S.C. § 300h-7(k), ELR STAT. 41114.

97. SDWA § 1427(a), 42 U.S.C. § 300h-6(a), ELR STAT. 41112.

98. SDWA § 1427(d), 42 U.S.C. § 300h-6(d), ELR STAT. 41113. In establishing the criteria, the Administrator is directed to consider such factors as vulnerability of the aquifer, the number of persons using the aquifer for drinking water, benefits of protection of the aquifer, and costs of degradation.

99. SDWA § 1427(c), 42 U.S.C. § 300h-6(c), ELR STAT. 41112.

100. SDWA § 1427(e), 42 U.S.C. § 300h-6(e), ELR STAT. 41113.

101. SDWA § 1427(f)(1), 42 U.S.C. § 300h-6(f)(1), ELR STAT. 41113.

102. SDWA § 1427(f)(2), 42 U.S.C. § 300h-6(f)(2), ELR STAT. 41113.

103. SDWA § 1427(g), 42 U.S.C. § 300h-6(g), ELR STAT. 41113.

104. Senator Durenberger stated that the program was not to infringe "on the traditional relationship between the Federal Government and state and local governments in matters of land use and water resources." 132 CONG. REC. S6289 (daily ed. May 21, 1986) (statement of Sen. Durenberger).

105. 132 CONG. REC. S6297 (daily ed. May 21, 1986) (statement of Sen. Cranston).

106. 132 CONG. REC. H2637-38 (daily ed. May 13, 1986) (statement of Rep. Downey).

107. SDWA § 1427(f)(2), 42 U.S.C. § 300h-6(f)(2), ELR STAT. 41113.

108. SDWA § 1427(j), 42 U.S.C. § 300h-6(j), ELR STAT. 41113.

109. 132 CONG. REC. H2637-38 (daily ed. May 13, 1986) (statement of Rep. Downey).

110. 132 CONG. REC. S6297 (daily ed. May 21, 1986) (statement of Sen. Gorton).

111. SDWA § 1427(k), 42 U.S.C. § 300h-6(k), ELR STAT. 41113.