treatment

methods identified in § 142.61(a) are available and effective for the system, that system shall be entitled to a variance under the provisions of section 1415(a)(1)(A) of the Act. The Administrator's or primacy state's determination as to the availability and effectiveness of such treatment methods shall be based upon studies by the system and other relevant information. If a system submits information to demonstrate that a treatment method is not available and effective for fluoride control for that system, the Administrator or primacy state shall make a finding whether this information supports a decision that such treatment method is not available and effective for that system before requiring installation and/or use of such treatment method.

(c) Pursuant to § 142.43(c)-(g) or corresponding state regulations, the Administrator or primacy state that issues variances shall issue a schedule of compliance that may require the system being granted the variance to examine the following treatment methods (1) to determine the probability that any of these methods will significantly reduce the level of fluoride for that system, and (2) if such probability exists, to determine whether any of these methods are technically feasible and economically reasonable, and that the fluoride reductions obtained will be commensurate with the costs incurred with the installation and use of such treatment methods for that system:

(1) Modification of lime softening; (2) Alum coagulation;

(3) Electrodialysis;

(4) Anion exchange resins; (5) Well field management; (6) Alternate source;

(7) Regionalization.

(d) If the Administrator or primary state that issues variances determines that a treatment method identified in § 142.61(c) or other treatment method is technically feasible, economically reasonable, and will achieve fluoride reductions commensurate with the costs incurred with the installation and/or use of such treatment method for the system, the Administrator or primacy state shall require the system to install and/or use that treatment

method in connection with a compliance schedule issued under the provisions of section 1415(a)(1)(A) of the Act. The Administrator's or primacy state's determination shall be based upon studies by the system and other relevant information.

[51 FR 11411, Apr. 2, 1986]

§ 142.62 Variances and exemptions from the maximum contaminant levels for synthetic organic chemicals.

(a) The Administrator, pursuant to section 1415(a)(1)(A) of the Act, hereby identifies the following as the best technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant levels for synthetic organic chemicals: Removal using packed tower aeration; removal using granular activated carbon (except for vinyl chloride).

(b) A State shall require community water systems and non-transient noncommunity water systems to install and/or use any treatment method identified in § 142.62(a) as a condition for granting a variance except as provided in paragraph (c) of this section. If, after the system's installation of the treatment method, the system cannot meet the MCL, the system shall be eligible for a variance under the provisions of section 1415(a)(1)(A) of the Act.

(c) If a system can demonstrate through comprehensive engineering assessments, which may include pilot plant studies, that the treatment methods identified in § 142.62(a) would only achieve a de minimis reduction in contaminants, the State may issue a schedule of compliance that requires the system being granted the variance to examine other treatment methods as a condition of obtaining the variance.

(d) If the State determines that a treatment method identified in paragraph (c) of this section is technically feasible, the Administrator or primacy State may require the system to install and/or use that treatment method in connection with a compliance schedule issued under the provisions of section 1415(a)(1)(A) of the Act. The State's determination shall

be based upon studies by the system and other relevant information.

(e) The State may require a public water system to use bottle water or point-of-use devices or other means as a condition of granting a variance or an exemption from the requirements of § 141.61(a), to avoid an unreasonable risk to health.

(f) Public water systems that use bottled water as a condition for receiving a variance or an exemption from the requirements of § 141.61(a) must meet the following requirements in either paragraph (f)(1) or (f)(2) of this section in addition to requirements in paragraph (f)(3) of this section:

(1) The Administrator or primacy State must require and approve a monitoring program for bottled water. The public water system must develop and put in place a monitoring program that provides reasonable assurances that the bottled water meets all MCLS. The public water system must monitor a representative sample of the bottled water for all contaminants regulated under § 141.61(a) the first quarter that it supplies the bottled water to the public, and annually thereafter. Results of the monitoring program shall be provided to the State annually.

(2) The public water system must receive a certification from the bottled water company that the bottled water supplied has been taken from an "approved source" as defined in 21 CFR 129.3(a); the bottled water company has conducted monitoring in accordance with 21 CFR 129.80(g) (1) through (3); and the bottled water does not exceed any MCLs or quality limits as set out in 21 CFR 103.35, 110, and 129. The public water system shall provide the certification to the State the first quarter after it supplies bottled water and annually thereafter.

(3) The public water system is fully responsible for the provision of sufficient quantities of bottled water to every person supplied by the public water system, via door-to-door bottled water delivery.

(g) Public water systems that use point-of-use devices as a condition for obtaining a variance or an exemption from NPDWRS for volatile organic chemicals must meet the following requirements:

(1) It is the responsibility of the public water system to operate and maintain the point-of-use treatment system.

(2) The public water system must develop a monitoring plan and obtain State approval for the plan before point-of-use devices are installed for compliance. This monitoring plan must provide health protection equivalent to a monitoring plan for central water treatment.

(3) Effective technology must be properly applied under a plan approved by the State and the microbiological safety of the water must be maintained.

(4) The State must require adequate certification of performance, field testing, and, if not included in the certification process, a rigorous engineering design review of the point-of-use devices.

(5) The design and application of the point-of-use devices must consider the tendency for an increase in heterotrophic bacteria concentrations in water treated with activated carbon. It may be necessary to use frequent backwashing, post-contactor disinfection, and Heterotrophic Plate Count monitoring to ensure that the microbiological safety of the water is not compromised.

§ 142.64 Variances and exemptions from the requirements of Part 141, Subpart H-Filtration and Disinfection.

(a) No variances from the requirements in Part 141, Subpart H are permitted.

(b) No exemptions from the requirements in § 141.72(a)(3) and (b)(2) to provide disinfection are permitted.

[54 FR 27540, June 29, 1989]

EFFECTIVE DATE NOTE: At 54 FR 27540, June 29, 1989, § 142.64 was added, effective December 31, 1990.

Subpart H-Treatment of Indian Tribes as States

SOURCE: 53 FR 37411, Sept. 26, 1988, unless otherwise noted.

§ 142.72 Requirements for treatment as a State.

The Administrator is authorized to treat an Indian Tribe as a State (for purposes of making the Tribe eligible to apply for a Public Water System Program) if it meets the following criteria:

(a) The Indian Tribe is recognized by the Secretary of the Interior.

(b) The Indian Tribe has a tribal governing body which is currently "carrying out substantial governmental duties and powers" over a defined area, (i.e., is currently performing governmental functions to promote the health, safety, and welfare of the affected population within a defined geographic area).

(c) The Indian Tribe demonstrates that the functions to be performed in regulating the public water systems that the applicant intends to regulate are within the area of the Indian Tribal government's jurisdiction.

(d) The Indian Tribe is reasonably expected to be capable, in the Administrator's judgment, of administering (in a manner consistent with the terms and purposes of the Act and all applicable regulations) an effective Public Water System program by the existence of management and technical skills necessary to administer an effective Public Water System program or a plan to acquire the additional management and/or technical skills to administer an effective Public Water

System Program; by the existence of institutions to exercise executive, legislative, and judicial functions; by a history of successful managerial performance of public health or environmental programs; and by acceptable accounting and procurement procedures.

§ 142.76 Request by an Indian Tribe for a determination of treatment as a State.

An Indian Tribe may apply to the Administrator for a determination that it qualifies for treatment as a State pursuant to section 1451 of the Act. The application shall be concise and describe how the Indian Tribe will meet each of the requirements of § 142.72. The application shall consist of the following information:

(a) A statement that the Tribe is recognized by the Secretary of the Interior.

(b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. The statement shall:

(1) Describe the form of the Tribal government;

(2) Describe the types of governmental functions currently performed by the Tribal governing body such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and welfare of the affected population; taxation; and the exercise of the power of eminent domain; and

(3) Identify the sources of the Tribal government's authority to carry out the governmental functions currently being performed.

(c) A map or legal description of the area over which the Indian Tribe asserts jurisdiction; a statement by the Tribal Attorney General (or equivalent official) which describes the basis for the Tribe's jurisdictional assertion (including the nature or subject matter of the asserted jurisdiction); a copy of all documents such as Tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe's asserted jurisdiction; and a description of the locations of the public water

systems the Tribe proposes to regulate.

(d) A narrative statement describing the capability of the Indian Tribe to administer an effective Public Water System program. The narrative statement shall include:

(1) A description of the Indian Tribe's previous management experience including, but not limited to, the administration of programs and services authorized by the Indian Self-DeE termination and Education Assistance Act (25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or the Indian Sanitation Facilities Construction Activity Act (42 U.S.C. 2004a).

=(2) A list of existing environmental I or public health programs administered by the Tribal governing body and a copy of related Tribal laws, regulations and policies.

(3) A description of the Indian Tribe's accounting and procurement systems.

(4) A description of the entity (or entities) which exercise the executive, legislative, and judicial functions of the Tribal government.

(5) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary enforcement responsibility, including a description of the relationship between owners/operators of the public water systems and the agency.

(6) A description of the technical and administrative capabilities of the staff to administer and manage an effective Public Water System Program or a plan which proposes how the Tribe will acquire additional administrative and/or technical expertise. The plan must address how the Tribe will obtain the funds to acquire the additional administrative and technical expertise.

(e) The Administrator may, in his discretion, request further documentation necessary to support a Tribal request for treatment as a State.

(f) If the Administrator has previously determined that a Tribe has met the requirement for "treatment as a State" for programs authorized under the Safe Drinking Water or the Clean Water Acts, then that Tribe may provide only that information unique to

Indian Tribe's application for treatment as a State.

(a) The Administrator shall process a completed application of an Indian Tribe for treatment as a State submitted pursuant to § 142.76 in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.

(b) Within 30 days after receipt of the Indian Tribe's completed application for treatment as a State, the Administrator shall notify the appropriate governmental entities. Notice shall include information on the substance of and basis for the Tribe's jurisdictional assertions.

(c) Each governmental entity so notified by the Administrator shall have 30 days to comment upon the Tribe's assertion of jurisdiction. Comments by governmental entities shall be limited to the Tribe's assertion of jurisdiction.

(d) If a Tribe's asserted jurisdiction is subject to a competing or conflicting claim, the Administrator, after consultation with the Secretary of the Department of the Interior, or his designee, and in consideration of other comments received, shall determine whether the Tribe has adequately demonstrated the requisite jurisdiction for primacy for the Public Water System Program.

(e) If the Administrator determines that a Tribe meets the requirements of § 142.72, the Indian Tribe is then eligible to apply for development grants and primary enforcement responsibility for a Public Water System Program and associated funding under section 1443(a) of the Act and for primary enforcement responsibility for public water systems under section 1413 of the Act.

Subpart 1-Administrator's Review of State Decisions that Implement Criteria Under Which Filtration Is Required

SOURCE: 54 FR 27540, June 29, 1989, unless otherwise noted.

EFFECTIVE DATE NOTE: At 54 FR 27540, June 29, 1989, Subpart I to Part 142 was added, effective December 31, 1990.

§ 142.80 Review procedures.

(a) The Administrator may initiate a comprehensive review of the decisions made by States with primary enforcement responsibility to determine, in accordance with § 141.71 of this chapter, if public water systems using surface water sources must provide filtration treatment. The Administrator shall complete this review within one year of its initiation and shall schedule subsequent reviews as (s)he deems necessary.

(b) EPA shall publish notice of a proposed review in the FEDERAL REGISTER. Such notice must:

(1) Provide information regarding the location of data and other information pertaining to the review to be conducted and other information including new scientific matter bearing on the application of the criteria for avoiding filtration; and

(2) Advise the public of the opportunity to submit comments.

(c) Upon completion of any such review, the Administrator shall notify each State affected by the results of the review and shall make the results available to the public.

§ 142.81 Notice to the State.

(a) If the Administrator finds through periodic review or other available information that a State (1) has abused its discretion in applying the criteria for avoiding filtration under § 141.71 of this chapter in determining that a system does not have to provide filtration treatment, or (2) has failed to prescribe compliance schedules for those systems which must provide filtration in accordance with section 1412(b)(7)(C)(ii) of the Act, (s)he shall notify the State of these findings. Such notice shall:

(1) Identify each public water system for which the Administrator finds the State has abused its discretion;

(2) Specify the reasons for the finding;

(3) As appropriate, propose that the criteria of § 141.71 of this chapter be applied properly to determine the

need for a public water system to provide filtration treatment or propose a revised schedule for compliance by the public water system with the filtration treatment requirements;

(b) The Administrator shall also notify the State that a public hearing is to be held on the provisions of the notice required by paragraph (a) of this section. Such notice shall specify the time and location of the hearing. If, upon notification of a finding by the Administrator that the State has abused its discretion under § 141.71 of this chapter, the State takes corrective action satisfactory to the Administra tor, the Administrator may rescind the notice to the State of a public hearing.

(c) The Administrator shall publish notice of the public hearing in the| FEDERAL REGISTER and in a newspaper of general circulation in the involved State, including a summary of the findings made pursuant to paragraph (a) of this section, a statement of the time and location for the hearing, and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing.

(d) Hearings convened pursuant to paragraphs (b) and (c) of this section shall be conducted before a hearing of ficer to be designated by the Adminis trator. The hearing shall be conducted by the hearing officer in an informal, orderly, and expeditious manner. The hearing officer shall have the author ity to call witnesses, receive oral and written testimony, and take such other action as may be necessary to ensure the fair and efficient conduct of the hearing. Following the conclu sion of the hearing, the hearing offi cer may make a recommendation to the Administrator based on the testi mony presented at the hearing and shall forward any such recommenda tion and the record of the hearing to the Administrator.

(e) Within 180 days after the date notice is given pursuant to paragraph (b) of this section, the Administrator shall:

(1) Rescind the notice to the State of a public hearing if the State takes corrective action satisfactory to the Administrator; or