As discussed in the previous post, the Safe Drinking Water Act (“SDWA”) requires public water supplies to protect human health by meeting the MCLs (Maximum Contaminant Loads) established by EPA and the State. Below we discuss:
- the division of authority between EPA and Michigan, and
- public water systems’ responsibility in providing safe drinking water.
THE DIVISION OF AUTHORITY BETWEEN EPA AND THE STATE
Most states, including Michigan, have the authority to administer their own drinking water program. However, this authority was not automatically granted. States were granted that authority by EPA after demonstrating to EPA that they had:
- adopted drinking water regulations no less stringent than the drinking water regulations set forth by EPA,
- adopted adequate procedures to enforce those regulations,
- adopted a plan for providing drinking water in cases of emergency, such as hurricanes and earthquakes,
- adopted a system for maintaining records and reporting on the implementation and enforcement of regulations, and
- given the State agency responsible for implementing the SDWA adopted the authority to assess administrative penalties against public water systems not complying with the regulations.[i]
The State’s authority can be revoked if the EPA finds the state agency is not fulfilling its regulatory obligations.[ii]
While the State may be responsible for implementing the regulations, EPA is obliged to oversee that implementation. States are required to submit quarterly reports to EPA detailing violations of the NPDWRs and new enforcement actions.[iii] Annually, EPA is required to review the State’s implementation of the SDWA to ensure drinking water standards are met and public water suppliers (“PWSs”) are fulfilling their obligations.[iv]
RESPONSIBILITY OF PUBLIC WATER SYSTEMS
In large part, the EPA and authorized State agencies–in the case of Michigan called the Michigan Department of Environmental Quality (“MDEQ”)–function to set forth minimum standards to be applied to PWSs nation-wide and state-wide. The MDEQ is charged with ensuring that PWSs meet the Minimum Contaminant Levels (discussed in the previous blog post)[v], but it is the PWSs who have the direct responsibility of meeting the MCLs as well as various sampling, monitoring and reporting requirements.[vi] When the PWSs fail to comply with the MCLs or meet the monitoring and reporting requirements, the MDEQ may impose fines and conduct the sampling themselves.[vii]
When the concentration of lead in drinking water exceeds .015 mg/L in more than 10% of homes, PWSs are responsible for implementing treatment techniques.[viii] This level of concentration is known as an “action level” and requires the adoption of treatment techniques such as, including optimal corrosion control treatment, service line replacement and public education. The regulations dictate that of the suggested treatment techniques, PWSs should first apply a corrosion control treatment.[ix] A corrosion control treatment introduces a chemical agent to the drinking water that is not toxic to human health but reduces the corrosivity of water toward metal plumbing by creating a protective film on the inside of the metal pipes.[x] Large PWSs like Flint’s, must “optimize corrosion control” (i.e. apply the corrosion control treatment) without an initial monitoring period unless they can demonstrate corrosion control has been already been optimized.[xi] In the event that the PWS decides to change the source of its drinking water, the MDEQ must review and approve the change as well as prescribe additional monitoring.[xii] For small and medium systems, corrosion control treatment is not required until two six month-long sampling periods have concluded that the action level is in fact being exceeded.[xiii]
Because of the seriousness of certain effects on health that contaminated water can have on humans, when MCLs are not met, the public is entitled to receive a notification of what contaminant has been discovered in the drinking water and the level of contamination.[xiv] Within 60 days of the exceedances being discovered, all bill-paying customers should be informed of the contamination.[xv] PWSs are also responsible for publishing consumer confidence reports available to the public.[xvi]
The SDWA, and the implementing state laws and regulations establish the MDEQ and EPA as overseers and to a certain extent, the fail-safes. In the event that the PWSs are not complying with established MCLs or failing to meet monitoring and reporting requirements, the MDEQ can step in. The regulations further provide for oversight of MDEQ determinations. The Regional Administrator–in the case of Michigan, the Region 5 Administrator–is authorized to establish treatment requirements for a PWS when a State has abused its discretion in making a corrosion control treatment or source water treatment determination.[xvii] While a system of oversight seems to be in place, the exercise of authority is very much discretionary, which means that poorly supported decisions may still go unreviewed.
[i] 40 CFR 142.10.
[ii] 40 CFR 142.17.
[iii] 40 CFR 142.15(a). States are also required to report variances granted to water systems.
[iv] 40 CFR 142.17.
[v] MCLS § 325.1003 (2015). Small-sized water systems serve fewer than 3,300 people. MICH. ADMIN. CODE R 325.10108 (2016). Medium-sized water systems serve between 3,300 and 50,000. MICH. ADMIN. CODE R 325.10106 (2016). And large-sized water systems serve more than 50,000 people. MICH. ADMIN. CODE R 325.10105 (2016).
[vi] MCLS § 325.1007 (2015).
[vii] MCLS § 325.1007 (2015). 40 CFR 141.86 sets forth the lead and copper monitoring requirements.
[viii] MICH. ADMIN. CODE R 325.10106(q) (definition of “optimal corrosion control treatment”). MICH. ADMIN. CODE R 325.10102(b) (definition of “action level”).
[ix] MICH. ADMIN. CODE R 325.10604f (2016).
[x] 40 CFR 141.2.
[xi] 40 CFR 141.81(a)(1). MICH. ADMIN. CODE R 325.10604f(2)(a). EPA recently published a memorandum discussing large PWSs’ corrosion control treatment obligations which can be found at http://www.epa.gov/dwreginfo/memo-addressing-lead-and-copper-rule-requirements-optimal-corrosion-control-treatment.
[xii] MICH. ADMIN. CODE R 325.10604f(2)(b)(iii)(C).
[xiv] MCLS § 325.1019 (2015). 40 CFR 140.80(g) (pursuant to 40 CFR 141.85 any PWS that exceeds the lead action level must fulfill the public education requirements set forth by the State).
[xv] MICH. ADMIN. CODE R 325.10410(3)(b) (requiring public education when lead has been discovered after sampling conducted under MICH. ADMIN. CODE R 325.10710a).
[xvi] MCLS § 325.1014 (2015).
[xvii] 40 CFR 142.19.