regulatory setting

The Regulatory Setting B–1

The Regulatory SettingOverview of the LawsOne of the biggest challenges local officials face is learning to navigate themaze of regulations governing the operations of their water and wastewatertreatment works, regulations which impact the day-to-day operations andfinancing needs of every community’s public utilities. It is critical to under-stand the legal setting and ensure that the superintendents and operators oflocal treatment plants are complying fully with applicable laws. In fact, acommunity’s chief elected local official is likely to be the person those lawsultimately will hold responsible for ensuring compliance and protection ofthe environment and public health. This section is designed to offer a user-friendly overview of those laws and regulations and to provide a list ofadditional resources for further information.!

Development of Legislation and Mechanisms forEnforcement

A number of federal and state laws and regulations are likely to apply towastewater collection and treatment and drinking water treatment anddistribution. This chapter summarizes the key requirements of those regula-tions and describes the implied and stated responsibilities of local officials. Asis often the case with other regulatory requirements, state and local water andwastewater regulations must be at least as stringent as federally-mandatedstandards. It is necessary to check with state environmental or health agen-cies to see how state regulations might differ from parallel federal regulationsand to obtain details about all applicable laws and regulations.

State agencies and Indian tribes generally receive primary enforcementresponsibility, or “primacy,” for the regulations governing drinking watertreatment and distribution. They also receive “delegation” of authority forenforcing wastewater discharge standards. State agencies applied for enforce-ment responsibility by submitting to EPA a description of their authority andthe enforcement mechanisms that were to be used to ensure compliance withthe regulations. All of the states in EPA Region 3 have received primacy anddelegation. However, the District of Columbia does not have enforcementresponsibility, so EPA Region 3 directly regulates the District’s drinking waterand wastewater treatment programs.

In order to receive primacy or delegation, states must adopt state regulationsthat are at least as stringent as the federal regulations. States assume responsi-bility for making sure that plants comply with federal and state requirements.

!Much of the information in this chapter is excerpted from the U.S. Environmental Protec-tion Agency Region 3’s “Green Community Kit” and from “Environmental Planning for SmallCommunities: A Guide for Local Decision Makers” by EPA’s Office of Research and Develop-ment and Office of Regional Operations and State and Local Relations.

In this chapter:! Major federal

statutes andenforcementmechanisms

! Compliance! Emergencies

Delegation ofRegulatoryAuthority

Congress enacts laws

States adopt and enforce regulations that are at least as stringent as those

promulgated by EPA

EPA publishes regulations to

implement those federal laws

Local officials sometimes are charged with

monitoring drinking water regulation

compliance for public water systems that

serve non-residential populations, like

schools, restaurants, and gas stations

B–2 Local Officials Handbook

A complex system of permitting; monitoring; required treatment techniques,technologies, and best management practices; reporting; and inspection andauditing determine compliance with the regulations.

In cases of non-compliance, enforcement agencies may issue administrativeorders that require facilities to correct violations, and those agencies mayassess monetary or other penalties. The laws also allow EPA and state agen-cies to pursue civil and criminal actions that may include mandatory injunc-tions or penalties, as well as jail sentences for persons found willfully violat-ing requirements and endangering the health and welfare of the public or theenvironment.

Wastewater facility monitoring reports are public documents, and thereforethe general public has the legal right to review. If a citizen believes that afacility is violating its permit, and if that citizen can establish “standing” (seethe “Legal Responsibilities” chapter), then he or she can independentlyinitiate a legal proceeding, unless EPA or the state regulatory agency hasalready taken an enforcement action.

The considerable public attention received by water and sewer systems isrivaled only by their close monitoring from regulatory agencies. According toEPA, sewer systems receive the most inspections of any local governmentoperation. Recent EPA figures show that nationally nearly 80 percent of allenforcement actions against local government were taken under the CleanWater Act.!

If the states fail to enforce regulations, EPA will step in to make sure theenvironment and public health are protected. Penalties and fines are leviedbased on consideration of a variety of factors, including seriousness of theviolation, culpability (including gross negligence and willful misconduct),efforts to mitigate damage, history of prior violations, and any economicbenefit gained because of the violation.

The Clean Water Act and Proposed Changes

Because of growing public concern about serious and widespread waterpollution, Congress enacted the Clean Water Act (CWA) in 1972. It is theprimary federal law that protects U.S. waters, including lakes, rivers, aquifers,and coastal areas.

The Clean Water Act provides comprehensive standards, technical tools,and financial assistance to address the causes of pollution and poor waterquality, including public and industrial wastewater discharges, polluted runofffrom urban and rural areas, and habitat destruction. For example, the CleanWater Act:! requires industries to meet performance standards for pollution control;! charges states and tribes with setting specific water quality criteria for

their waters and developing pollution control programs to meet them;

!U. S. Environmental Protection Agency, Office of Enforcement and Compliance Assistance.Profile of Local Government Operations, EPA Industry Sector Notebook, EPA/310-R-99-001,1999.

WarningEnvironmental lawsallow EPA and stateagencies to pursuecivil and criminalactions that mayinclude mandatoryinjunctions orpenalties, as well asjail sentences forpersons foundwillfully violatingrequirements andendangering thehealth and welfareof the public or theenvironment.


! provides funding to states and communities to help them meet theirclean water infrastructure needs (now provided through state revolvingloan funds); and

! protects wetlands and other aquatic habitats through a permitting processthat ensures development and other activities are carried out in anenvironmentally sound manner.

The Clean Water Act is expected to be reauthorized in 2000 or 2001. Likelyrevisions include use of a “watershed approach” to protect and improve waterresources, stronger federal and state standards, enhanced natural resourcestewardship, and improved availability of information for citizens and offi-cials.

The Safe Drinking Water Act

In 1974 Congress passed the Safe Drinking Water Act (SDWA) to ensurethat drinking water supplied to the public is safe. The SDWA regulates allwater systems with at least 15 service connections or regularly serving at least25 people. The law defines all such systems as public water systems. TheSDWA applies equally to privately owned community water systems, such asmobile home parks and water companies, and to non-community systems,such as those at factories, schools, and campgrounds.

The SDWA was amended significantly in 1986, and again in 1996. The 1986Amendments strengthened standard-setting procedures, enforcement author-ity, and groundwater protection provisions. The EPA was directed to substan-tially and quickly increase the number of regulated contaminants. The 1986Amendments also required all public water systems using surface watersources to disinfect and, in almost all cases, to filter their water supplies. The1996 SDWA Amendments further protect public health through regulatoryimprovements, increased funding, prevention programs, and public participa-tion.

Significant Changes and Key Project Areas Under the 1986 SDWAAmendments! great increase in the number of regulated contaminants! expansion of regulations to include non-transient, non-community water

systems! increase in monitoring for organic chemicals! provision for waivers and exemptions from chemical monitoring! establishment of more stringent coliform monitoring requirements! tightening of requirements for the treatment of surface water and ground-

water under the direct influence of surface water! establishment of lead and copper regulations and corrosion control

requirements! increase in requirements for public notification and risk communication! initiation of a groundwater protection program, including the wellhead

protection program! provision of funding to identify and provide the special protections

needed for sole source aquifers


Significant Changes and Key Project Areas Under the 1996 SDWAAmendments! selection of regulatory priorities determined on the basis of public health

risk! flexibility for states to implement the Act! additional funding for states and some public water supplies through the

Drinking Water State Revolving Fund (DWSRF)! funding for new state prevention initiatives, including source water

assessments! national minimum guidelines for states regarding the certification of

operators of drinking water systems! water system capacity development program, especially for small systems! increased drinking water protection through government accountability

and public understanding and support, including consumer confidencereports

The regulations that implement the SDWA are called the National Primaryand Secondary Drinking Water Regulations. These regulations may be foundin the Code of Federal Regulations, Title 40, Parts 141, 142, and 143.

System Compliance with the LawAs described earlier, states generally are responsible for enforcing environ-mental laws. In most states, environmental laws are implemented andenforced by a state environmental regulatory agency.

The mechanisms for complying with the Clean Water Act and the SafeDrinking Water Act are complex and specific. In general, water and wastewa-ter systems are inspected by a designated regulatory agency. Systems demon-strate compliance by detailed and accurate monitoring and reporting, andthey maintain compliance through effective system operation and mainte-nance by qualified (certified) operators and proper management by superin-tendents and local officials. Specific requirements are outlined in the follow-ing sections.

Clean Water Act Implementation

The Clean Water Act requires a National Pollutant Discharge EliminationSystem (NPDES) permit for discharge from a point source (direct industrialor public wastewater discharge) into the waters of the United States. Thepermit contains limits on what may be discharged, monitoring and reportingrequirements, and other provisions to ensure that the discharge does notendanger water quality. In general, NPDES permits specify both maximumallowable concentrations of specific pollutants in milligrams per liter (mg/L)and maximum allowable loadings of those pollutants in pounds per day permonth. Some permits, however, specify generic “best management practices”for the protection of water quality.

Helpful GuidanceThe regulations thatimplement theSDWA are calledthe NationalPrimary andSecondary DrinkingWater Regulations.These regulationsmay be found in theCode of FederalRegulations, Title 40,Parts 141, 142, and143.


In most states, the state environmental protection office issues permits.However, because the District of Columbia does not have delegation, dis-chargers in the District receive permits from the EPA Region 3 office.

States issue permits for discharges to surface water and groundwater fromboth industrial and public facilities. Permits may be “individual” (site-specific), or they may be “general” (developed for a group of facilities orsimilar types of discharges). Monthly operating reports and discharge moni-toring reports, which provide documentation of compliance (or non-compli-ance) with the NPDES permit governing the plant, are basically self-moni-toring instruments. Data must be recorded accurately and truthfully. Stateregulatory agencies also will send inspectors to determine if systems are incompliance with the discharge parameters imposed under their permits.

A wastewater treatment plant’s NPDES permit is likely to address manage-ment of effluent, biosolids, combined sewer overflows (CSOs), stormwatermanagement, industrial pretreatment, and oil spill prevention and control.

Because NPDES is a water quality-based permitting system, permit limits maychange due to changes in water quality. To meet CWA requirements, statesare currently identifying waters that are impaired by pollution. For thosewaters, the state must establish a total maximum daily load (TMDL) ofpollutants, which is the maximum allowable pollutant loading that allows thewaters to remain safe for fishing and swimming.

Once this maximum pollutant load (TMDL) is defined, it must be allocatedbetween point and non-point sources and include a margin for safety and forfuture growth. The allocation will balance equity and cost considerations andmay involve innovative approaches such as trading loadings between differ-ent pollutant sources. When a TMDL is ready for implementation, thepublic, affected dischargers, regional agencies, and local governments will beinvolved in the TMDL process of determining which pollution sourcesshould bear the treatment or control burdens needed to reach allowableloading levels. Each local government should have a TMDL contact personto work with the agencies responsible for implementing TMDL strategies.

It is important for local officials to recognize that TMDLs may result inadditional and more stringent pollutant limits for their systems. Wastewatertreatment plants may require new technologies to meet the stricter permitsthat may be issued for point sources.

Most states are using existing programs to provide technical and financialassistance to control and allocate pollutant loads. Examples include cost-share programs for nutrient removal at public wastewater plants, low-costloans from state revolving loan programs, and grants for stormwater retrofits.

Safe Drinking Water Act Implementation

EPA has established maximum contaminant levels (MCLs), treatmenttechniques, and best available technologies to ensure the treatment anddelivery of safe drinking water for the public. More than 100 substances areregulated under the SDWA, and more are being added each year. For many

TimelyReminderLocal officialsshould ensure thattheir facilities havean annualperformancereview to evaluateeach plant’sefficiency, safety,and generalperformance;compliance status;capacity issues; andpollutionpreventionopportunities. Theperformancereview should beconducted by thelocal environmentaltraining center oranotherindependentevaluator.


contaminants, initial monitoring is performed and, if results are withincertain parameters, future monitoring is thereafter limited. For bacteriologi-cal contaminants, however, monitoring and treatment requirements areextensive and on-going.

Water treatment plants legally demonstrate adequate treatment of water bymonitoring and reporting laboratory analysis of contaminants, including:! lead and copper! volatile organic chemicals (VOCs)! synthetic organic chemicals (SOCs)! inorganic chemicals (IOCs)! radionucleides! total coliforms! turbidity! disinfection by-products

As mentioned earlier, monitoring for many of these contaminants, such asradionucleides and chemicals, is reduced after initial testing demonstratesacceptable results. However, monitoring to show control of microbiologicalcontaminants is stringent and comprehensive, because of the acute healthrisks presented by bacteria, viruses, and protozoa in drinking water.

Depending on the type of contaminant and the likely cause of contamina-tion, source water or finished water, or both, are monitored. Methods oflaboratory analysis are specified in the regulations for each contaminant.Treatment facilities submit monitoring, lab analysis, and other routine andspecial reports to the primacy agency.

Failure to submit required reports constitutes a violation. In fact, according toEPA, the vast majority of recent drinking water violations nationally were forwater systems’ significant failure to monitor and report, as opposed to viola-tion of an MCL or treatment technique. Water systems, like wastewatersystems, are subject to periodic inspections by the regulatory agency to ensurethat monitoring, analysis, and reporting are carried out appropriately.

If monitoring shows that the water system exceeds an MCL or if the system isotherwise found to be in violation of drinking water regulations, the systemmust:! quickly notify the state regulatory agency;! notify the public of the violation as directed by the state agency;! work with the state agency, an engineer, or a technical assistance pro-

vider to find the source of contamination and identify the best way toreduce the level of the contaminant in the water supply; and

! ask the state agency and other assistance agencies for help in findingfinancial resources to make the necessary changes in the water system.

As noted above, drinking water systems must notify their customers whendrinking water standards are violated. The purpose of public notification is toinform consumers of potential adverse health effects and to tell them whatthey can do to minimize their impact. Systems should always notify the stateagency of the violation first, and ask its direction in providing public notifi-cation.

WarningMost drinkingwater violations arerelated to failure tomeet monitoringand reportingrequirements.Ensure that yourwater system iscomplying in thisarea.


In addition to notification regarding violations, other types of public commu-nication are required. Systems that serve the same customers year round mustprovide annual consumer confidence reports (CCRs) on the source andquality of their tap water. CCRs provide a unique opportunity for a system tohighlight its significant efforts to protect the public health and to justifynecessary expenditures that might cause rate increases. These public reports,like every contact with consumers, should be viewed as a public relations toolfor the water system.

Other reporting may be required to show source water protection, includingrequirements of watershed management plans (for surface water supplies) andwellhead protection programs (for groundwater supplies). Additionally,capacity development efforts may require reporting to show technical,managerial, and financial capacity to deliver safe drinking water now and inthe future.

Approximately 95 percent of all community water systems serve fewer than3,300 persons. These small systems often struggle with compliance and mayhave difficulty affording treatment technologies needed to comply with newSDWA regulations. The regulations allow variances and exemptions underspecial circumstances, and Congress has also authorized and helped financethe Drinking Water State Revolving Fund (DWSRF) program to helpsystems finance projects needed to bring about compliance with SDWAregulations. Local officials should ensure that their systems get help early and,if necessary, often!

Requirements for Reporting EmergenciesEPA has established requirements to report emergencies that may be harmfulto public health or welfare, or to the environment. Circumstances underwhich special reporting may be required include:! oil spills to navigable waters or adjoining shorelines! natural disasters! chemical accidents! hazardous substance releases! toxic releases

Each state has its own contact for reporting emergencies. See the resourcessection at the end of this handbook for more information.

Money MattersSmall systems mayqualify for fundingassistance whichhelps them tocomply with theSDWA and CWA.Check the“FinancialManagement”chapter forinformation.

regulatory setting

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