Potential SBAR Panel: National Primary Drinking Water Regulation for Perchlorate
What is the Implication of the Proposed Rulemaking on Small Entities?
The EPA is developing a National Primary Drinking Water Regulation (NPDWR) for the chemical contaminant perchlorate (ClO4–) under the authority of the Safe Drinking Water Act (SDWA) and as required by court orders. In 2011, EPA issued a determination to regulate perchlorate in drinking water. EPA issued proposed standards for perchlorate in June 2019 and also requested comment on the withdrawal of its 2011 determination, noting a new analysis indicating that very few public water systems would find perchlorate above a level of health concern. Based on the information and analysis presented in the 2019 proposed rule, EPA withdrew the 2011 regulatory determination and issued a final determination not to regulate perchlorate in July 2020. In May 2023, the D.C. Circuit vacated and remanded EPA’s July 2020 withdrawal of its determination to issue drinking water regulations for perchlorate. As a result of this decision, EPA has committed to issuing a proposed NPDWR for perchlorate by November 2025, and a final regulation by May 2027. The EPA expects the proposed perchlorate NPDWR would require public water systems to monitor for perchlorate, include information about perchlorate in the Consumer Confidence Report, potentially issue public notifications and take action to reduce perchlorate concentrations in drinking water to comply with a Maximum Contaminant Level (MCL).
At this time, EPA has not determined whether the proposed perchlorate NPDWR will have significant economic impacts on a substantial number of small public water systems (PWSs). However, because future EPA analysis may indicate that the proposed rule could have significant economic impacts on a substantial number of small PWSs, we have elected to move forward with preparing for a potential Small Business Advocacy Review (SBAR) panel process at this time.
An NPDWR applies to a Public Water System. A PWS provides water for human consumption through pipes or other constructed conveyances to at least 15 service connections or serves an average of at least 25 people for at least 60 days a year. A PWS may be publicly or privately owned. EPA defines three types of PWSs:
- Community Water System (CWS): A PWS that supplies water to the same population year-round.
- Non-Transient Non-Community Water System (NTNCWS): A PWS that regularly supplies water to at least 25 of the same people at least six months per year. Some examples are schools, factories, office buildings, and hospitals which have their own water systems.
- Transient Non-Community Water System (TNCWS): A PWS that provides water in a place such as a gas station or campground where people do not remain for long periods of time.
The EPA anticipates that the proposed perchlorate standard will apply to CWS and NTNCWS systems but not to TNCWS. For purposes of assessing the impacts of the proposed rule revisions, EPA considers small entities to be PWSs serving 10,000 or fewer people. By definition, systems with populations smaller than 25 people or fewer than 15 service connections are not considered PWSs and are therefore not subject to SDWA requirements.
Additional information about perchlorate in drinking water is available on the EPA’s web site: Perchlorate in Drinking Water.
What is a Small Business Advocacy Review Panel?
The EPA expects to conduct a Small Business Advocacy Review (SBAR) Panel for the development of a proposed rulemaking that will regulate the chemical contaminant perchlorate in drinking water to protect public health.
The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA) requires the EPA to convene an SBAR Panel for a proposed rule unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Panel process offers an opportunity for potentially directly regulated small businesses, small governments, and small not-for-profit organizations (collectively referred to as small entities) to provide advice and recommendations to ensure that EPA carefully considers small entity concerns regarding the impact of the potential rule on their companies, governments, or organizations. The Panel itself is comprised of federal employees from the EPA, the Office of Management and Budget’s (OMB’s) Office of Information and Regulatory Affairs (OIRA), and the Office of Advocacy in the Small Business Administration (SBA). Small Entity Representatives (SERs) provide advice and recommendations to the Panel.
For purposes of assessing impacts to small entities for this proposed rule, EPA considers small entities to be Public Water Systems (PWSs) serving 10,000 or fewer persons. Other representatives, such as trade associations that exclusively or at least primarily represent potentially regulated small entities, also may serve as SERs. These other representatives are evaluated on a case-by-case basis.
To learn more, review EPA’s Frequent Questions for Small Entities web page.
How Can I Get Involved?
If you are a small PWS serving 10,000 or fewer people that may be directly subject to this rule, you are eligible to serve as a SER. As mentioned above, other representatives that exclusively or at least primarily represent potentially regulated small entities may also serve as SERs. The role of a SER is to provide advice and recommendations to ensure that the Panel carefully considers small entity concerns regarding the impact of the potential rule on their organizations.
You may nominate yourself to serve as a SER by following the directions in the next section. Depending on the volume of responses, the EPA may not be able to invite all eligible candidates to participate as SERs. Generally, SERs will be asked to review background information, listen to informational briefings, and provide oral and written advice and recommendations to the Panel. At least one virtual or in-person meeting is typically held with the SERs in Washington, DC with a toll-free conference line provided.
To qualify as a SER you must:
- Be a PWS serving 10,000 or fewer people AND expect to be directly subject to requirements of the proposed rule; or
- Exclusively represent or at least primarily represent potentially regulated small entities (e.g., a trade association that exclusively or primarily represents small PWSs). Nominees such as these will be evaluated on a case-by-case basis.
Who Should I Contact?
Individuals who are interested in potentially serving as a SER should send an email message to RFA-SBREFA@epa.gov by no later than October 17, 2024. In the message, please provide:
- Your name
- Name of your PWS
- Your public water system ID number
- Number of people served by your PWS
- If you are with a group such as a trade association that represents small PWSs, please provide the percent of your members that qualify as small PWS, and a qualitative statement describing how your group can truly represent only the unique interests of your members that qualify as small entities
- Address of your PWS
- Contact information (including phone number and email address)
- Use this as the subject line of your email: SER Self-Nomination for NPDWR for Perchlorate
Please remember: Depending on the volume of responses, EPA may not be able to invite all qualified candidates to participate as SERs.