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EPA Drinking Water Enforcement Response Policy

At the direction of the EPA, as of May 20, 2011, the TCEQ has adopted a new approach for enforcement targeting under the Safe Drinking Water Act (SDWA).

This new approach is designed to focus on public water systems (PWSs) with health-based violations and those PWSs with a history of violations across multiple rules.

Under the previous approach, all rule-specific significant noncompliers (SNC) were treated equally regardless of the severity of the violation.

Why This New Policy?

The goals of this new enforcement response policy (ERP) are:

  • consider water system compliance status comprehensively;
  • align violations of the Safe Drinking Water Act within a prioritization that is more protective of public health;
  • ensure continued efforts to hold water systems accountable for compliance and to provide a mechanism to ensure a timely return to compliance; and
  • increase the effectiveness of state and federal enforcement targeting efforts by providing a calculation method to determine the comprehensive noncompliance status and identify those PWSs not meeting national expectations as set by the EPA.

This new EPA strategy provides another way to identify systems who could benefit from our capacity development and sustainability assistance programs.

How Will This Help?

This system-specific method is intended to ensure consistency and fairness in prioritizing PWSs for enforcement actions. The enforcement response policy re-emphasizes a focus on return to compliance (RTC) rather than simply addressing a violation. The policy is geared to increase our effectiveness in the protection of public health. It helps to prioritize and direct enforcement response to systems with the most serious issues by considering a PWS's compliance history in a comprehensive way.

How Will the Enforcement Targeting Tool Work?

The enforcement targeting tool (ETT) is the calculation method for determining a PWS's enforcement priority points. It will be used to help identify and prioritize systems for enforcement response.

This system-based approach uses a formula that enables the prioritization of PWSs by assigning each violation a weight or number of points based on the EPA-assigned threat to public health. For example, a violation of an acute maximum contaminant level (MCL) will carry more weight than that of a consumer confidence report (CCR) violation. Based on this approach, we and the EPA will be able to target resources to address those water systems have the highest priority problems.

The ETT formula provides a method for identifying water systems having the highest total noncompliance across all rules, within a designated period of time (with a higher weight placed on health based violations). The formula calculates a score for each system based on open-ended violations and violations that have occurred over the past 5 years, but does not include violations that have returned to compliance or are on the path to compliance through a specified enforcement action. The path to compliance is the status of a water system that has been placed under an enforceable action to return it to compliance.

Violations Considered

The formula considers only those violations that are related to federally regulated contaminants. State-specific violations are not included in determination of a system's ETT score. The formula provides a rank-order of all PWSs based on the total points assigned for each violation and the length of time since the first unaddressed violation.

Factors behind the Formula

The factors of the formula are:

  • The severity of the violation, which is based on a modification of Public Notification tiers, as set forth in Title 40 of the Code of Federal Regulations at Part 141, Subpart Q, Public Notification of Drinking Water Violations, Section 141.201.
  • The severity or weight of the violation is highest for acute contaminant health based violations, with a lower weight for chronic and other health based violations (and nitrate monitoring and total coliform repeat monitoring violations), and with the lowest weighting for other monitoring, reporting, and other violations.
  • The number of years that a system’s violations have been unaddressed

Calculation Method

For each public water system, a point score of noncompliance is calculated using the formula:

Sum (S1 + S2 + S3 + … ) + n

The total points for each violation are added together, and a time factor is added to achieve the total score for the water system, where:

S = violation severity factor:

  • 10 points for each acute health-based violation
  • 5 points for each:
    • Total Coliform Rule (TCR) repeat monitoring violation,
    • Nitrate monitoring and reporting violation, or
    • other health-based violation.
  • 1 point for any other violation

n = number of years that the system’s oldest violations have been unaddressed (0–5 points)

number of months of oldest violation to ETT calculation daten = points
less than 12 months 0 points
12 months - 23 months 1 point
24 months - 35 months 2 points
36 months - 47 months 3 points
48 months - 59 months 4 points
60 months 5 points

 This approach streamlines the effectiveness of the program and is most protective of public health while also improving enforcement targeting and the attainment of compliance. In addition to the enforcement targeting tool, a second component of this new approach involves revisions to the existing enforcement response policy.

Enforcement Response Policy

The enforcement targeting tool will establish the universe of systems on a national level that have unaddressed violations over the previous five years. The enforcement response policy will then be used to identify the subset of those systems considered to be in nationally significant noncompliance. The enforcement response policy includes a model for escalating responses to violations and provides a definition of timely and appropriate actions once a PWS is identified as part of the targeted SNC list.

What Are the Policy's Goals?

The enforcement response policy has several goals:

  • To ensure that both EPA and the States act on and resolve drinking water violations and take steps to address drinking water systems that are out of compliance
  • To ensure that EPA and the States escalate enforcement efforts based on the national prioritization approach
  • To recognize the validity of informal enforcement response efforts while insuring that if these efforts have proven ineffective at returning a system to compliance, that enforceable and timely action is taken by the States in the first instance or by EPA if the State has failed to act.

What Is Meant by "Timely Response"?

Once a PWS is identified as a national enforcement priority on the targeted list, an appropriate action or return to compliance (RTC) will be required within two calendar quarters to be considered timely. However, regardless of a water system’s position on our enforcement target list, the EPA expects us to act immediately on acute, health-based violations and subsequently confirm the PWS's return to compliance.

What if We Cannot Return to Compliance?

If RTC is not possible within two calendar quarters (6 months) of a system appearing as a national enforcement priority, an appropriate enforcement action is expected to be issued within those two quarters, placing the system on the path to compliance.

An appropriate action is considered a formal enforcement action and includes administrative orders with and without penalty, civil/criminal referral, and civil/criminal case filed.

EPA has broad enforcement discretion to discuss specific timetables and mechanisms to return a system to compliance. For example, if a system can show that RTC is imminent but for reasons such as installation of new treatment or construction or other reason, RTC may take just over two quarters. EPA may not require a formal action by the state in order to give the system the opportunity to RTC.

This discretion allows for some flexibility for systems that simply need a little more time but whose return to compliance is imminent. It is not, however, something that can be extended indefinitely as a way to avoid formal action. The RTC or action needs to be achieved within two quarters and recorded such that it is reflected in the next update of the national database. For example, if a system is identified in January as an enforcement priority, the state would have until June to RTC the system’s violations or take a formal enforcement action. That RTC or action would then need to be submitted to EPA such that it was reflected in the Federal database in October.

Enforcement Response Policy Schedule

Based on the score determined through the enforcement targeting tool (ETT), systems with a score of 11 or higher will be assigned an enforcement response policy (ERP) schedule. The ERP schedule documents our activities in the compliance review and enforcement action referral.

Every quarter the Public Drinking Water Section data administrators will extract the data and create schedules for those systems that are newly identified as having triggered the enforcement response. Systems can monitor TCEQ activities by viewing their compliance schedule.