[Federal Register Volume 67, Number 48 (Tuesday, March 12, 2002)]
[Rules and Regulations]
[Pages 11043-11046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6016]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 141

[FRL-7157-3]


Unregulated Contaminant Monitoring Regulation for Public Water 
Systems; Establishment of Reporting Date

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: Today's direct final rule establishes August 9, 2002, as a 
new, later date by which large water systems serving more than 10,000 
persons must report all contaminant monitoring results they receive 
before May 13, 2002, for the Unregulated Contaminant Monitoring 
Regulation (UCMR) monitoring program. Monitoring results received on or 
after May 13, 2002, must be reported within thirty days following the 
month in which laboratory results are received, as specified in the 
current regulation for this program.

DATES: This rule is effective May 13, 2002, without further notice, 
unless EPA receives adverse comment by April 11, 2002. If we receive 
such comment, we will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect. For 
judicial review purposes, this final rule is promulgated as of 1:00 
p.m. EST on May 13, 2002, as provided in 40 CFR 23.7.

ADDRESSES: Please send an original and three copies of your comments 
and enclosures (including references) to docket number W-00-01-IV, 
Comment Clerk, Water Docket (MC4101), USEPA, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460. Due to uncertainty of mail delivery in the 
Washington, DC area, in order to ensure that your comments are 
received, please also send a separate copy of your comments to Greg 
Carroll, USEPA, 26 West Martin Luther King Drive, MC-140, Cincinnati, 
Ohio 45268. Hand deliveries should be delivered to EPA's Water Docket 
at 401 M. St., SW., Room EB57, Washington, DC. Commenters who want EPA 
to acknowledge receipt of their comments should enclose a self-
addressed, stamped envelope. No facsimiles (faxes) will be accepted. 
Comments may also be submitted electronically to [email protected]. Electronic comments must be submitted as a Word 
Perfect (WP) WP5.1, WP6.1 or WP8 file or as an ASCII file, avoiding the 
use of special characters and forms of encryption. Electronic comments 
must be identified by the docket number W-00-01-IV. Comments and data 
will also be accepted on disks in WP 5.1, 6.1, 8 or ASCII file format. 
Electronic comments on this rule may be filed online at many Federal 
Depository Libraries.
    The record for this rulemaking has been established under docket 
number W-00-01-IV and includes supporting documentation as well as 
printed, paper versions of electronic comments. The record is available 
for inspection from 9 to 4 p.m., Monday through Friday, excluding legal 
holidays, at the Water Docket, EB 57, USEPA Headquarters, 401 M St., 
SW., Washington, DC. For access to docket materials, please call 202/
260-3027 to schedule an appointment.

FOR FURTHER INFORMATION CONTACT: Jeffrey Bryan (202) 564-3942, Drinking 
Water Protection Division, Office of Ground Water and Drinking Water 
(MC-4606-M), U.S. Environmental Protection Agency, 1200 Pennsylvania 
Avenue, NW., Washington DC 20460. General information about UCMR may be 
obtained from the EPA Safe Drinking Water Hotline at (800) 426-4791. 
The Hotline operates Monday through Friday, excluding Federal holidays, 
from 9 a.m. to 5:30 p.m. ET.

SUPPLEMENTARY INFORMATION:

Potentially Regulated Entities

    The regulated entities are public water systems. All large 
community and non-transient non-community water systems serving more 
than 10,000 persons are required to monitor and report under the UCMR. 
A community water system (CWS) means a public water system which serves 
at least 15 service connections used by year-round residents or 
regularly serves at least 25 year-round residents. Non-transient non-
community water system (NTNCWS) means a public water system that is not 
a community water system and that regularly serves at least 25 of the 
same persons over 6 months per year. This rule does not apply to 
systems serving 10,000 or fewer persons that were randomly selected to 
participate in the unregulated contaminant monitoring program, since 
EPA arranges for testing and reporting for those systems. States, 
Territories, and Tribes, with primacy to administer the regulatory 
program for public water systems under the Safe Drinking Water Act, 
sometimes conduct analyses to measure for contaminants in water samples 
and are regulated by this action. Categories and entities potentially 
regulated by this action include the following:

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              Category                         Examples of potentially regulated entities               NAICS
----------------------------------------------------------------------------------------------------------------
State, Territorial and Tribal        States, Territories, and Tribes that analyze water samples on        924110
 Governments.                         behalf of public water systems required to conduct such
                                      analysis; States, Territories, and Tribes that themselves
                                      operate community and non-transient non-community water
                                      systems required to monitor.
Industry...........................  Private operators of community and non-transient non-community       221310
                                      water systems required to monitor.
Municipalities.....................  Municipal operators of community and non-transient non-              924110
                                      community water systems required to monitor.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware of 
that could potentially be regulated by this action. Other types of 
entities not listed in the table could also be regulated. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

I. Statutory Authority

    SDWA section 1445 (a)(2), as amended in 1996, requires EPA to 
establish criteria for a program to monitor unregulated contaminants 
and to issue, by August 6, 1999, a list of contaminants to be 
monitored. In fulfillment of this requirement, EPA published Revisions 
to the UCMR for public water systems on September 17, 1999 (66 FR 
46221), March 2, 2000 (65 FR 11372), and January 11, 2001 (66 FR 2273), 
which included lists of contaminants for which monitoring was required 
or would be required in the future. On September 4, 2001 (56 FR

[[Page 11044]]

46221), EPA published a rule delaying requirements for reporting of 
unregulated contaminant monitoring results until its electronic 
reporting system was ready to accept data. This rule provides the new 
reporting deadline.

II. Background

    Today's action establishes August 9, 2002, as a new, later date by 
which all unregulated contaminant monitoring results received before 
May 13, 2002, must be reported to EPA. All monitoring results received 
on or after May 13, 2002, must be reported within thirty days following 
the month in which laboratory results are received, as currently 
specified in 40 CFR 141.35. Today's rule to establish the reporting 
date will not result in a major burden or impact on any affected party. 
Prior dates had been established in previous rules promulgated on 
September 17, 1999 (64 FR 50556), and January 11, 2001 (66 FR 2273), 
but changed because the EPA database was not ready to receive the data. 
The reporting date was delayed by rule on September 4, 2001 (66 FR 
46221), to allow the initial version of the database to be completed 
and tested before operation. The database has now been in operation 
since October 1, 2001, and has been receiving data from water systems. 
Data resulting from unregulated contaminant monitoring and sample 
analysis received before May 13, 2002, must be reported by August 9, 
2002. The establishment of this reporting date only affects community 
and non-transient non-community water systems serving more than 10,000 
persons which are required to monitor for unregulated contaminants and 
report monitoring data to EPA.

III. Costs and Benefits of the Rule

    Today's amendment to the UCMR does not require any additional costs 
that were not already considered in previous rulemakings related to 
this action. The only reason that the reporting date is being 
established in this rule at this time is that the previously 
established dates could not be implemented because the EPA database was 
not ready to receive the data. Through the public comment on the 
January 11, 2001 rulemaking for this program, commenters indicated that 
EPA should not require reporting of unregulated contaminant monitoring 
results until the database was ready. That database is now ready and 
has been receiving such data as of October 1, 2001.

IV. Administrative Requirements

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (a) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (b) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (c) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866.

B. Executive Order 13045--Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This rule is 
not subject to E.O. 13045 because it is not ``economically 
significant'' under EO 12866; nor does it concern an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including Tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or Tribal 
governments or the private sector. The rule imposes no additional 
enforceable duty on any State, local or Tribal governments or the 
private sector. This rule does not change the costs to State, local, or 
Tribal governments as estimated in the final revisions to the 
Unregulated Contaminant Monitoring Rule (64 FR 50556, September 17, 
1999; 65 FR 11372, March 2, 2000; and 66 FR 2273, January 11, 2001). 
This rule merely establishes a new, later date by which unregulated 
contaminant monitoring results received by large systems serving more 
than 10,000 persons before May 13, 2002, must be reported. Thus, 
today's rule is not subject to the requirements of sections 202 and 205 
of the UMRA.

[[Page 11045]]

    EPA has determined that this final rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments because this rule does not apply to small systems (i.e., 
systems serving a population of 10,000 or less), including those owned 
and operated by small governments. Thus today's rule is not subject to 
the requirements of section 203 of UMRA.

D. Paperwork Reduction Act

    This action does not impose any new information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 
et.seq. This rule makes a minor revision to the Unregulated Contaminant 
Monitoring Rule to establish a new, later reporting deadline. Burden 
means the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

E. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 
et.seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to the notice-and-comment 
rulemaking requirement under the Administrative Procedure Act or any 
other statute unless the Agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
government jurisdictions.
    The RFA provides default definitions for each type of small entity. 
It also authorizes an agency to use alternative definitions for each 
category of small entity, ``which are appropriate to the activities for 
the agency'' after proposing the alternative definition(s) in the 
Federal Register and taking comment. 5 U.S.C. secs. 601(3)--(5). In 
addition to the above, to establish an alternative small business 
definition, agencies must consult with the Small Business 
Administration's (SBA's) Chief Counsel for Advocacy.
    For purposes of assessing the impacts of today's rule on small 
entities, EPA considered small entities to be public water systems 
serving 10,000 or fewer persons. This is the cut-off level specified by 
Congress in the 1996 Amendments to the Safe Drinking Water Act for 
small system flexibility provisions. In accordance with the RFA 
requirements, EPA proposed using this alternative definition for all 
three categories of small entities in the Federal Register, (63 FR 
7620, February 13, 1998) requested public comment, consulted with SBA 
regarding the alternative definition as it relates to small businesses, 
and expressed its intention to use the alternative definition for all 
future drinking water regulations in the Consumer Confidence Reports 
regulation (63 FR 44511, August 19, 1998). As stated in that final 
rule, the alternative definition would be applied to this regulation as 
well.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule 
makes a minor revision to the UCMR and imposes no additional 
enforceable duty on any State, local or Tribal governments or the 
private sector. It merely establishes a new, later date by which 
unregulated contaminant monitoring results received by large systems 
serving more than 10,000 persons before May 13, 2002, must be reported.

F. National Technology Transfer and Advancement Act

    Section 12 (d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113 Section 12(d) (15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., material specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    EPA's use of voluntary consensus standards in the UCMR program and 
approval of Method 515.4 were addressed in the September 1999 and 
January 2001 rulemakings (64 FR 50608 and 66 FR 2298). This action does 
not involve technical standards. Therefore, EPA did not consider the 
use of any voluntary consensus standards.

G. Executive Order 12898--Environmental Justice Strategy

    Executive Order 12898 establishes a Federal policy for 
incorporating environmental justice into Federal agency missions by 
directing agencies to identify and address disproportionately high and 
adverse human health or environmental effects of its programs, 
policies, and activities on minority and low-income populations. 
Today's rule makes a minor change to the UCMR, and does not alter the 
regulatory impact of those regulations.

H. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Today's rule merely makes a minor 
change to the UCMR, establishing a new, later date by which unregulated 
contaminant monitoring results received by large systems serving more 
than 10,000 persons before May 13, 2002, must be reported. The rule 
imposes no cost on State and local governments, and does not preempt 
State law. Thus, Executive Order 13132 does not apply to this rule.

I. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with

[[Page 11046]]

Indian Tribal Governments'' (65 FR 67249, November 6, 2000), requires 
EPA to develop an accountable process to ensure ``meaningful and timely 
input by Tribal officials in the development of regulatory policies 
that have Tribal implications.'' ``Policies that have Tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This rule does not have Tribal implications. It will not have 
substantial direct effects on Tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Today's rule merely makes a minor change to the UCMR establishing a 
new, later date by which unregulated contaminant monitoring results 
received by large systems serving more than 10,000 persons before May 
13, 2002, must be reported. The rule imposes no cost on Tribal 
governments and does not pre-empt Tribal law. Thus, Executive Order 
13175 does not apply to this rule.

J. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), provides that agencies shall prepare and submit to the 
Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget, a Statement of Energy Effects for 
certain actions identified as ``significant energy actions.'' Section 
4(b) of Executive Order 13211 defines ``significant energy actions'' as 
``any action by an agency (normally published in the Federal Register) 
that promulgates or is expected to lead to the promulgation of a final 
rule or regulation, including notices of inquiry, advance notices of 
proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is 
a significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action.''
    This rule is not subject to Executive Order 13211 because it is not 
a significant regulatory action under Executive Order 12866.

K. Administrative Procedure Act

    EPA is publishing this rule without prior proposal because it views 
this as a noncontroversial amendment and anticipates no adverse 
comment. EPA does not anticipate adverse comment because this rule 
merely establishes a new, later reporting deadline for UCMR data 
collected before May 13, 2002. However, in the ``Proposed Rule'' 
section of today's Federal Register publication, EPA is publishing a 
separate document that will serve as the proposal for this rule if 
adverse comments are filed. This rule will be effective on May 13, 
2002, without further notice unless EPA receives adverse comment by 
April 11, 2002. If EPA receives adverse comment, it will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. EPA will address all public comments in a 
subsequent final rule based on the companion proposed rule published 
elsewhere in today's Federal Register. EPA will not institute a second 
comment period on this action. Any parties interested in commenting 
must do so at this time.

L. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on May 13, 2002.

List of Subjects in 40 CFR Part 141

    Environmental protection, Chemicals, Indian lands, 
Intergovernmental relations, Radiation protection, Reporting and 
recordkeeping requirements, Water supply.

    Dated: March 7, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons set out in the preamble, title 40, chapter 1 of the 
Code of Federal Regulations is amended as follows:

PART 141--NATIONAL PRIMARY DRINKING WATER REGULATIONS

    1. The authority citation for part 141 continues to read as 
follows:

    Authority: 42 U.S.C. 300f, 300g-1, 300g-2, 300g-3, 300g-4, 300g-
5, 300g-6, 300j-4, 300j-9, and 300j-11.


    2. Section 141.35 is amended by revising the last sentence of 
paragraph (c) to read as follows:


Sec. 141.35  Reporting of unregulated contaminant monitoring results.

* * * * *
    (c) * * * Exception: Reporting to EPA of monitoring results 
received by public water systems prior to May 13, 2002, must occur by 
August 9, 2002.
* * * * *
[FR Doc. 02-6016 Filed 3-11-02; 8:45 am]
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