Safe Drinking Water Act Section 1441

Public water systems (PWSs) and publicly owned treatment works (POTWs) may experience a critical shortage of water treatment chemicals. Additionally, chemical suppliers may experience issues with availability of process inputs needed to manufacture or supply water treatment chemicals.

In such cases, it may be possible to seek relief under the Safe Drinking Water Act (SDWA) Section 1441. Select the appropriate link below to learn more.

• Information for PWSs and POTWs
• Information for Chemical Companies
• Frequently Asked Questions (FAQs) Regarding SDWA Section 1441

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How PWSs and POTWs Can Request Direct Assistance From EPA

If PWSs or POTWs experience a critical shortage of treatment chemicals, they should first attempt to resolve the situation by completing the following steps:

• Work with their current supplier to understand the supply issue and attempt to arrange for product delivery.
• Evaluate the timeframe in which the chemical is needed to sustain critical operations, and determine whether the chemical will be available within that timeframe.
• Identify and contact alternate suppliers in the region that may be able to deliver product. EPA’s Chemical Supplier and Manufacturer Locator Tool can be used to identify suppliers.
• Consult with the primacy agency or permitting authority to inform them of the situation, determine if they can provide assistance, and determine if there are options during an emergency to address the shortage while maintaining compliance with applicable regulations.
• Contact mutual aid networks (e.g., WARNs) to request assistance.

If these steps are completed without resolving the situation, PWSs and POTWs may contact EPA at SupplyChainSupport@epa.gov to request direct assistance. If during the course of providing assistance EPA determines that SDWA Section 1441 may be applicable, EPA will work with the requesting system to initiate and complete that process.

How PWSs and POTWs Can Request a Certification of Need under SDWA Section 1441

1. A PWS or POTW submits the materials listed below to EPA at SupplyChainSupport@epa.gov. EPA will confirm receipt within two to five business days of submission.
   • An application for certification of need:  SDWA Section 1441 Application for Certification of Need for PWS/POTWs (docx) (2.24 MB, 09/21/21, 816F21005)
   • A brief cover letter regarding the request on utility letterhead and signed by a PWS or POTW representative who is authorized to represent the PWS or POTW.
2. Upon receipt of the application, EPA will either (1) publish a notice in the Federal Register to notify in writing all individuals who could be subject to an order based on the certification of need and to provide time for written comment or (2) waive such requirements when EPA finds for good cause that a waiver is necessary to protect the public health.
3. After review of the application, EPA will determine whether issuance of a certification of need is warranted.
4. If EPA issues the certification, EPA will forward it to the Department of Commerce (DOC) Undersecretary for Business and Industrial Security for implementation.
5. Within seven days of EPA issuing the certification, the DOC Undersecretary for Business and Industrial Security shall issue an order requiring the manufacturers, producers, processors, distributors, and repackagers of the chemical or substance identified in the certification of need that the Department determines to be necessary and appropriate to provide the chemical or substance in the amount EPA determined was necessary.
6. Persons or companies subject to the order will be given a reasonable opportunity to consult with the DOC with respect to implementation of the order.

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How Chemical Suppliers Can Request Assistance From EPA

If chemical suppliers experience issues with availability of process inputs needed to distribute or manufacture treatment chemicals intended for use by PWSs or POTWs, they can contact EPA at SupplyChainSupport@epa.gov to request relief under SDWA Section 1441.

How Chemical Suppliers Can Request a Certification of Need under SDWA Section 1441

1. A chemical supplier submits the materials listed below to EPA at SupplyChainSupport@epa.gov. EPA will confirm receipt within two to five business days of submission.
   •  An application for certification of need:  SDWA Section 1441 Application for Certification of Need for Chemical Suppliers (docx) (2.83 MB, 01/30/2024, 810-F-24-002)
   • A brief cover letter regarding the request on company letterhead and signed by a company representative who is authorized to represent the company.
2. Upon receipt of the application, EPA will either (1) publish a notice in the Federal Register to notify in writing all individuals who could be subject to an order based on the certification of need and to provide time for written comment or (2) waive such requirements when EPA finds for good cause that a waiver is necessary to protect the public health.
3. After review of the application, EPA will determine whether issuance of a certification of need is warranted.
4. If EPA issues the certification, EPA will forward it to the DOC Undersecretary for Business and Industrial Security for implementation.
5. Within seven days of EPA issuing the certification, the DOC Undersecretary for Business and Industrial Security shall issue an order requiring the manufacturers, producers, processors, distributors, and repackagers of the chemical or substance identified in the certification of need that the Department determines to be necessary and appropriate to provide the chemical or substance in the amount EPA determined was necessary.
6. Persons or companies subject to the order will be given a reasonable opportunity to consult with the DOC with respect to implementation of the order.

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Frequently Asked Questions (FAQs) Regarding SDWA Section 1441

What are the criteria for EPA to issue a certification of need?

EPA reviews each application and makes a determination regarding issuance of a certification of need on a case-by-case basis. Given that this process can take as long as four weeks, PWSs, POTWs, and chemical suppliers should consider applying at their earliest opportunity if it appears that a chemical may not be available in the quantity needed for treatment in the future.

Can a suspected antitrust violation serve as a basis for a certification of need?

No, SDWA Section 1441 is not a mechanism to adjudicate suspected antitrust violations. The Federal Trade Commission (FTC) has a process for the public and businesses to report a suspected antitrust violation. Please consult the FTC’s Guide to the Antitrust Laws, which may answer general questions about the antitrust laws and contains Frequently Asked Questions on a number of topics. If you would like to report a suspected antitrust violation, please visit the FTC website or call (202) 326-3300.

How long does it take to execute a SDWA Section 1441 order?

EPA will expedite the processing of the application if the information provided by the utility indicates the need for urgency. The time to execute a SDWA Section 1441 order will depend on completeness of the application; whether the requirement to issue a Federal Register Notice is waived; and timeliness of the utility, state, primacy agency and vendors response to questions from EPA. If issuance of a Federal Register Notice is waived, a certification of need can be issued in less than seven days. Issuance of a Federal Register Notice will typically add 21 days to the process.

How are primacy agencies or permitting authorities involved in processes that involve PWSs or POTWs?

The statute does not define a specific role for states in the process, but EPA intends to coordinate with states.

Are any chemical producers or manufacturers exempt from this provision?

Yes. The Department of Commerce (DOC) cannot issue orders to “any manufacturer, producer, or processor of such chemical or substance who manufactures, produces, or processes (as the case may be) such chemical or substance solely for its own use.”  SDWA §1441(c)(1).

Can SDWA Section 1441 orders be issued to foreign persons or companies?

No. SDWA Section 1441 only applies to domestic manufacturers, producers, or processors.

What factors would the DOC consider in issuing orders under SDWA Section 1441?

The DOC would consider:

• Equitably apportioning orders, “as far as practicable, among all manufacturers, producers, and processors of such chemical or substance” and among all distributors and repackagers of such chemical or substance; SDWA §1441(c)(2);
• “The geographical relationships and established commercial relationships between such manufacturers, producers, processors, distributors, and repackagers and the persons for whom the orders are issued;” SDWA §1441(c)(2)(A);
• “In the case of orders to be issued to producers of chlorine, the (i) amount of chlorine historically supplied by each such producer to treat water in public water systems and public treatment works, and (ii) share of each such producer of the total annual production of chlorine in the United States;” SDWA §1441(c)(2)(B);
• Such other factors as determined “are relevant to the apportionment of orders.” SDWA §1441(c)(2)(C).

What does “person” mean in the context of SDWA Section 1441?

“The term ‘person’ means an individual, corporation, company, association, partnership, State, municipality, or Federal agency (and includes officers, employees, and agents of any corporation, company, association, State, municipality, or Federal agency).”  42 USC § 300f(12).

Where can I find a copy of SDWA Section 1441?

SDWA Section 1441 is on page 83 of the Title XIV of The Public Health Service Act: Safety of Public Water Systems (SDWA).

Is information from SDWA Section 1441 applications made public?

If EPA publishes a notice in the Federal Register for a SDWA 1441 application, which includes a redacted version of the application, all personal information, such as names, phone numbers, and email addresses is redacted. However, PWS and POTW names as well as supplier names are not redacted and do appear in the Federal Register Notice.

Who should I contact if I have questions about this process?

You may send an email to SupplyChainSupport@epa.gov.