TRIBAL DRINKING WATER OPERATOR CERTIFICATION PROGRAM DRAFT Final Guidelines Mention of trade names or commercial products does not constitute an EPA endorsement or recommendation for use.

Office Of Water ( 4606M) EPA 816 D 04  001 www. epa. gov/ safewater Printed on Recycled Paper March 2004 1 Table of Contents I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Program Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. Program Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 D. Process for Developing Program Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. RESPONSE TO COMMENTS AND KEY CERTIFICATION ISSUES . . . . . . . . . . . . 3 A. Voluntary Program and Grant Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. State Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. Grandparenting of Operators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 D. Classification of Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 E. Distribution and Treatment Facility Certification . . . . . . . . . . . . . . . . . . . . . . . . . 6 F. Operator Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 G. Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 H. Time Frame . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 III. OPERATOR CERTIFICATION GUIDELINES FOR INDIAN COUNTRY . . . . . . . . 8 A. Public Health Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Baseline Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. Classification of Systems, Facilities and Operators . . . . . . . . . . . . . . . . . . 12 2. Operator Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3. Program Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 4. Certification Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 5. Recertification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 6. Stakeholder Involvement and Program Review . . . . . . . . . . . . . . . . . . . . 15 7. Certification Provider Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 IV. SUBMITTAL PROCESS FOR CERTIFICATION PROVIDERS . . . . . . . . . . . . . . . 16 A. Submittal of Tribal Operator Certification Programs . . . . . . . . . . . . . . . . . . . . 16 B. Submittal Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 V. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 VI. ACRONYMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 18 2 I. INTRODUCTION A. Purpose The purpose of the Tribal Drinking Water Operator Certification Program is to increase public health protection by increasing the training and certification opportunities for personnel operating community and nontransient noncommunity drinking water systems in Indian country. The Draft Final Guidelines included in this document represent the United States Environmental Protection Agency's ( EPA) efforts to establish a program for drinking water system operators in Indian country that is flexible while at the same time providing meaningful public health protection. This voluntary program is intended to provide water system operators in Indian country with further training and certification opportunities in addition to existing training or certification programs offered by States, various federal agencies, and private organizations. At the time of publication of the Final Guidelines, there will be a request for applications from nonprofit organizations, educational institutions, or public agencies who wish to compete for grant funding to help start a new or amend an existing operator certification program to be implemented in Indian country.

B. Program Description The program guidelines establish seven baseline standards for the program and list the certification program requirements that must be met for organizations that certify operators of drinking water systems in Indian country to receive approval from the EPA. In addition, the program guidelines establish a consistent method that EPA will use to assess, track, and address certification and training needs in Indian country. Water system operators in Indian country can also receive certification from State and/ or other certification providers that meet the baseline standards outlined in these guidelines and that have received EPA approval.

Any current certification provider or organization interested in establishing an operator certification program for operators of water systems in Indian country may submit programs to EPA for review and approval. EPA will be responsible for implementing this voluntary Tribal Drinking Water Operator Certification Program in Indian country and for tracking the number of federally regulated water systems with certified operators. Certification providers will be responsible for tracking training taken and operator status, and for reporting this information to EPA.

EPA identified a goal for operator certification in the 1998  2003 Office of Water ( OW) Tribal strategy " Protecting Public Health and Water Resources in Indian country: A Strategy for EPA/ Tribal Partnership". The goal states: " By 2005, 80% of Tribal community and nontransient noncommunity water systems will have a certified operator". EPA believes that establishing a Tribal Drinking Water Operator Certification Program will help achieve this goal and will encourage greater public health protection in Indian country.

C. Program Provisions The Safe Drinking Water Act ( SDWA) Amendments of 1996 ( Pub. L. 104 182) direct the Administrator of the EPA, in cooperation with States, to develop guidelines specifying minimum standards for certification and re certification of operators of community and nontransient 3 noncommunity public water systems. EPA must withhold 20 percent of a State's Drinking Water State Revolving Fund ( DWSRF) grant unless the State adopts and implements an operator certification program that meets the guidelines. This 20 percent withholding provision does not apply to Tribes.

EPA has also been developing, in consultation with Tribes, this voluntary Tribal Drinking Water Operator Certification Program for Indian country. EPA believes that having a certified operator is a key factor in public health protection. Although this certification program is voluntary, EPA will require a Tribe to have, or agree to obtain within the project grant budget period, a certified operator( s) available to their drinking water system( s) in order to secure funds from the Drinking Water Infrastructure Grant Tribal Set Aside ( DWIG TSA) program. This grant condition comes from the 1998 DWIG TSA program final guidelines, and it will take effect upon final publication of the Tribal Drinking Water Operator Certification Program.

D. Process for Developing Program Guidelines In 1998, EPA Headquarters ( HQ) and Regional Offices ( Regions) formed a workgroup to discuss possible approaches for developing an operator certification program for Indian country. The State operator certification baseline standards were presented and changes were made to reflect special considerations for a program in Indian country. These modified baseline standards were presented at the 1998 Annual Native American Water Association ( NAWA) Conference and comments were solicited. Most of the comments received at the meeting were positive. The consensus was that such a program would be useful in Indian country. EPA continued with several additional internal reviews and presented the draft program guidelines at the Office of Ground Water and Drinking Water ( OGWDW) Tribal Consultation meeting in February of 1999. EPA presented the draft program guidelines at other Tribal meetings such as the 1999 Annual National Tribal Environmental Council ( NTEC) Conference to further solicit comments. In addition, EPA coordinated with other Federal Agencies and sought their recommendations. A Notification of Availability for the draft guidelines was published in the Federal Register on March 30, 2000. Copies of the draft guidelines were sent for comment to stakeholders and federallyrecognized Tribes whose drinking water programs are regulated by EPA. All comments received were considered as the final guidelines were being developed. Due to various delays in the process of publishing the guidelines, EPA has decided to issue a Notice of Availability for draft final guidelines, and allow for 60 days of public comment in order to ensure that the public is aware of the Tribal Drinking Water Operator Certification Program.

II. RESPONSE TO COMMENTS AND KEY CERTIFICATION ISSUES During development of the guidelines, EPA considered a number of programmatic and certification issues. Included here is a discussion of the key issues, and a brief explanation of how each issue was addressed.

A. Voluntary Program and Grant Conditions A concern was raised as to whether this program would be mandatory for systems in Indian country. As noted above, SDWA directs EPA, in cooperation with States, to develop guidelines 4 for certification of operators of community and nontransient noncommunity public water systems and requires EPA to withhold certain DWSRF funds unless a State adopts and implements an operator certification program that meets the guidelines. This statutory requirement does not apply to Tribes. While there are certain EPA regulations under SDWA that require qualified operators for public water systems, whether located in Indian country or not ( see 40 CFR 141.70( c) and 40 CFR 141.130( c)), this Tribal Drinking Water Operator Certification Program for systems in Indian country is voluntary.

Although this program is voluntary, previously published DWIG TSA Final Guidelines ( October 1998) state that after EPA has developed a Tribal Drinking Water Operator Certification Program for operators of systems in Indian country, " any system to be assisted with TSA funds must be operated by an adequately trained and certified operator" in order for a tribe to receive a grant for that system and " EPA Regional offices will not make grant awards to any systems that do not meet this condition."

In the course of developing these guidelines, many people commented on the 1998 grant guidelines and requested flexibility in the DWIG TSA grant condition. Several commenters suggested that EPA require that a water system operator in Indian country be trained and certified within a reasonable time frame of receiving a grant, rather than requiring that an operator already be certified in order to qualify for a grant. Occasionally the certified operator of the water system may leave the system without notice, and such circumstances do not justify disqualifying a Tribe from receiving DWIG TSA grants.

EPA has determined that a certified operator is needed to help meet the EPA policy on DWIG TSA grant eligibility. The EPA policy states that DWIG TSA grantees must have the technical, financial, and managerial capability to maintain their water system. Systems that do not have the adequate capability are not eligible to be funded with DWIG TSA assistance unless the Tribe or owner of the system agrees to make the appropriate changes in operation that will ensure the long term capability of the system. However, EPA agrees that providing flexibility in the operator certification grant condition may be appropriate in some instances. EPA Regions should make the determination as to whether grant eligibility flexibility is appropriate for a specific Tribe requesting federal financial assistance. This determination should be based on compliance records, past operator certification status, and current interest in building system capacity/ sustainability. A DWIG TSA grant will not be issued to a Tribe that applies for assistance without a defined plan to put a certified water system operator in place during the grant budget project period.

Other drinking water grants may also have water system operator certification conditions in order for Tribes to be eligible for financial assistance. EPA Regions will have the flexibility to issue such a grant condition for drinking water grants other than the DWIG TSA. Regions are encouraged, when feasible, to incorporate training and certification of the system operator, if not already accomplished, as a condition of any drinking water grant supporting a system without a currently certified operator. 5 B. State Certification Several workgroup members expressed concern that this new national program would preclude the use of State certification for operators of water systems in Indian country and would force these operators to seek certification from specific EPA approved certification providers. The goal of this program is to protect public health by providing more certification opportunities for operators of public water systems in Indian country. EPA understands that operators of public water systems in Indian country may choose to be trained and certified by State, private or other programs and this option is not eliminated. State, private or other certification at the appropriate classification level will satisfy any operator certification grant condition determined by EPA Regions, provided that the State, private or other certification program has been previously approved by EPA.

C. Grandparenting of Operators The terminology " grandparenting of operators," as used in the context of these guidelines, means exempting operators from meeting the initial certification requirements; as described in Section III B 2 of the Guidelines. EPA believes that grandparenting may be necessary to allow competent operators who have been successfully operating water systems, but may not meet the initial operator certification requirements, to continue working. In these situations, the operator could receive grandparented certification initially, but must meet the requirements for certification renewal ( including training).

There are some restrictions for this grandparenting clause:

$ The system owner must apply to the appropriate EPA Region for grandparented certification for the operator( s) in responsible charge within two years of the effective date of the guidelines.

$ The EPA Region has the responsibility to review and accept or decline applications for grandparented certification. The EPA Region must send a response to the system owner stating the determination of the Region of the eligibility of the operator for grandparented certification.

$ The grandparented certification of the operator will be site specific and nontransferable to other operators.

$ If the classification of the plant or distribution system changes to a higher level, then the grandparented certification will no longer be valid.

$ If the operator chooses to work for a different water system, he or she needs to meet the initial certificatioin requirement for that system and will lose their grandparented certification.

Also, EPA asks that certification providers pay special attention to identify specific certification 6 renewal requirements for operators with grandparented certification in order to ensure that they have the knowledge, skill, ability, and judgment to operate the system for which they were grandparented. EPA Regions should collaborate with the certification providers in this process since Regions are responsible for tracking water system compliance and enforcement.

D. Classification of Systems Initially, EPA determined that it should be the responsibility of operator certification providers to classify water systems in Indian country. However, further discussion led to a consensus that classification should be EPA's responsibility, in order to promote consistency among operator certification providers in Indian country. It would be extremely difficult for EPA to implement certain aspects of the Tribal Drinking Water Operator Certification Program in Indian country if providers had different classification systems.

EPA realizes that State classification systems will most likely differ from the classification system used in these guidelines. As many operators of systems in Indian country go to State providers for training and certification, EPA does not expect States to change their classification system in order to certify operators of systems in Indian country. In cases where water system operators in Indian country obtain State certification, EPA will accept the certification if the State has an EPA approved program, and the level of certification is comparable to the EPA classification of water systems in Indian country.

E. Distribution and Treatment Facility Certification The workgroup discussed whether both a distribution and a treatment certification were necessary for those systems that have both distribution and treatment characteristics. EPA determined that for the sake of public health protection, systems with distribution and treatment characteristics will be required to have both distribution and treatment certification.

However, for smaller, less complex systems, EPA encourages certification providers to develop and administer a combined treatment and distribution test to eliminate the need for two separate certifications. For this joint treatment/ distribution exam, EPA requires that the need to know criteria include pertinent information on both treatment and distribution topics. A single test minimizes the burden on operators of small systems while ensuring that the highest level of public health protection is provided.

F. Operator Training EPA considered whether the guidelines should specify the type and amount of training required for each classification level to ensure national consistency, or whether the guidelines should ask certification providers to specify their own training requirements. It was agreed that flexibility in training requirements is necessary. Therefore, training requirements will be determined by the certification provider. EPA's review of the various certification programs will ensure consistency among providers. Training will be accepted in a variety of forms.

G. Exemptions The workgroup discussed whether small or other special types of systems receiving assistance 7 from DWIG TSA grants should be exempt from the condition to have or agree to have within a reasonable time period, a certified operator. It was suggested that certain systems, such as small water systems with little or no treatment, be exempt from the grant condition outlined in these guidelines.

In response, EPA will not exempt from the operator certification requirement any community or nontransient noncommunity water systems receiving DWIG TSA funds. EPA believes that one of the most important benefits of these guidelines will be improved training for small system operators and consequently, better public health protection for the consumers served by small systems. Historically, compliance problems are much more widespread in smaller systems and these systems may benefit most by training. Congress also recognized this when it established the operator certification provisions for States. As discussed in the legislative history of these provisions ( S. Rep. 104 169, 104th Cong., 1st Sess at 61), Congress was aware that most States already had operator certification programs and that many exempted small systems. Congress was particularly concerned that the lack of operator training and certification for small systems could create compliance problems. In addition, monitoring and sampling by a trained operator are more likely to produce accurate results and be correctly interpreted. These concerns were central to the enactment of the State operator certification provisions.

EPA recognizes that some small systems provide little or no treatment and that some nontransient noncommunity systems ( e. g., schools) may not have distribution systems. Therefore, operators of these systems are not required to obtain the same type and amount of training that operators of larger systems may need in order to receive certification. These guidelines allow certification providers discretion to tailor training requirements to be consistent with the level of complexity of systems. However, the guidelines do not exempt community or nontransient noncommunity water systems receiving DWIG TSA funds from the certification requirements necessary to meet the grant condition.

At the same time, the guidelines do not require systems in Indian country to have a certified operator on site full time. Regions may opt to implement a program that would allow for a circuit rider to be the certified operator for a number of small systems. This flexibility is provided in the definition of " available" that is included in these guidelines ( See Section V Definitions). EPA believes that this language will reduce the financial burden on small systems, and allow for sharing certified operators in areas with a scarcity of qualified personnel. EPA Regions have flexibility in their interpretation of the term " available" since its meaning may differ due to geographic and demographic differences throughout the nation.

H. Time Frame Upon finalization of the guidelines, any public water system receiving a DWIG TSA grant will be required to have, or agree to have within the project grant budget period, a certified operator. EPA will recognize certification from any current certification provider, including those not yet reviewed by EPA, to allow for sufficient time to solicit certification providers and review programs. However, two years after publication of the final Tribal Drinking Water Operator Certification Program Guidelines, any system receiving a DWIG TSA grant will be required to 8 have, or agree to have within the project grant budget period, certification from an EPA approved certification provider or from an EPA approved State certification program.

III. OPERATOR CERTIFICATION GUIDELINES FOR INDIAN COUNTRY A. Public Health Objectives The public health objectives of the guidelines are to ensure that:

$ Customers of any public water system in Indian country be provided with an adequate supply of safe, potable drinking water.

$ Consumers of public water in Indian country are confident that their water is safe to drink.

$ Operators of public water systems in Indian country are trained and certified, and have the knowledge and understanding of the public health reasons for drinking water standards.

Ongoing training is necessary for public health protection objectives of programs.

B. Baseline Standards EPA asks that any operator certification provider requesting EPA program approval under these guidelines address the following seven baseline standards. The baseline standards explain the elements of a training/ certification program and certification provider requirements. They also outline EPA responsibilities.

1. Classification of Systems, Facilities and Operators In order to determine the level of certification for a water system operator, the system must be classified. EPA will be responsible for classifying drinking water systems in Indian country. Based on system complexity and other characteristics, an operator may be required to take a treatment facility test and a distribution system test. However, for a smaller/ less complex system, a combined treatment and distribution test which includes all the necessary need to know information should be developed and administered by certification providers, rather than requiring operators to have separate certifications for treatment and distribution. EPA requires that the need to know criteria include pertinent information on both treatment and distribution topics, but a single test would keep the burden for small system operators to a minimum while providing the highest level of public health protection. The table below shows the appropriate testing condition. 9 Level/ Class Treatment Exam Distribution Exam Joint Treatment & Distribution Exam I

*

II

NA III

NA IV

NA * for VSWS based on ABC classification and serving

3,300 population Distribution System Classification $ EPA will classify distribution systems according to the following classification system. EPA Regions will have the discretion to increase classification based on other system characteristics.

System Characteristics Check All That Apply Level Population = 3,300 or less G L I Population = 3,301 to 10,000 G L II Population > 10,001 G L III Pressure Zones greater than 5 G L II System is Blending Sources to meet MCL G L II Distribution Storage G L I Recycled Water Distribution G L II Hypochlorination G L I Gaseous and Other Chlorine Disinfectant G L II Distribution System Complexity ( see definition) G L  II IV System Level ( one or more

s determines level) =

Instructions  Please check the boxes next to all of the characteristics that apply to the system. The highest level for which one or more characteristics are checked will determine the system level.

Treatment Facility Classification $ EPA will classify all community and nontransient noncommunity treatment facilities in Indian country based on the Association of Boards of Certification 1 The Plant Point Rating System is copyrighted by the Association of Boards of Certification and is reprinted here with their permission. The Plant Point Rating System may be revised in the future, but this version will be used in the EPA program for Indian country.

10 ( ABC) Water Treatment Plant Point Rating System1 table below. Regions have the discretion to increase classification of treatment based on other system characteristics or treatment needs.

Unless otherwise noted, give full amount of points in the " Plant" box. For example:

Raw water quality is subject to or has elevated: Points Plant Correct: Taste and/ or odor levels 3 3 Incorrect: Taste and/ or odor levels 3 1 Do not double count. If the plant has two horizontal flow ( rectangular basins), DO NOT give 10 points, give 5 points. If the plant has more than one type of unit for each process, give points once for each unit.

Item Points Your Plant Size ( 2 point minimum to 20 point maximum) Maximum population or part served, peak day ( 1 point minimum to 10 point maximum)

Examples: 27,000 people served = 3 points 13,000 people served = 2 points ( Round up to the next whole number) 1 pt per 10,000 or part Design flow average day or peak month's part flow average day, whichever is larger ( 1 point minimum to 10 point maximum) Examples: 9.2 MGD = 10 points 4.7 MGD = 5 points ( Round up to the next whole number) 1 pt per MGD or part Water supply sources Groundwater 3 Groundwater under the influence of surface water 5 Surface water 5 Average raw water quality varies enough to require treatment changes 10% of the time with a range of 0 to 10 with the following guidelines: Little or no variation = 0 points High variation. ( Raw water quality subject to periodic serious industrial waste pollution) = 10 points 0 C 10 Raw water quality is subject to or has elevated:

· Taste and/ or odor levels 3 · Color levels 3 · Iron and/ or manganese levels 5 · Turbidity levels 5 · Coliform and/ or fecal counts 5 · Algal growths 5 Raw water quality is subject to periodic: · Industrial and commercial waste pollution 5 · Agricultural pollution 5 · Urban runoff, erosion, and storm water pollution 3 · Recreational use ( boating, fishing, etc.) 2 · Urban development and residential land use pollution 2 Chemical Treatment/ Addition Process Fluoridation 5 Disinfection · Gaseous chlorine 5 · Liquid or powdered chlorine 5 · Chlorine dioxide, chloramines 5 · Ozonization ( on site generation) 10 2 EPA considers the following special processes as " other": microfiltration, POE and POU devices, activated alumina, ferric hydroxide and ion exchange for Arsenic.

11 pH adjustment ( Calcium carbonate, carbon dioxide, hydrochloric acid, calcium oxide, calcium hydroxide, sodium hydroxide, sulfuric acid, other) 5 Stability or Corrosion Control ( Calcium oxide, calcium hydroxide, sodium carbonate, sodium hexametaphosphate, other) 10 Coagulation & Flocculation Process Chemical addition ( 1 point for each type of chemical coagulant added, maximum 5 points) ( Aluminum sulfate, bauxite, ferrous sulfate, ferric sulfate, calcium oxide, bentonite, calcium carbonate, carbon dioxide, sodium silicate, other) 5 Rapid mix units · Mechanical mixers 3 · Injection mixers 2 · In line blender mixers 2 Flocculation tanks · Hydraulic flocculators 2 · Mechanical flocculators 3 Clarification/ Sedimentation Process Horizontal flow ( rectangular basins) 5 Horizontal flow ( round basins) 7 Up flow solid contact sedimentation 15 Inclined plate sedimentation 10 Tube sedimentation 10 Dissolved air flotation 30 Filtration Process Single media filtration 3 Dual or mixed media filtration 5 Microscreens 5 Diatomaceous earth filters 5 Cartridge filters 5 Slow sand filters 5 Direct filtration 5 Pressure or greensand filtration 20 Other Treatment Processes Aeration 3 Packed tower aeration 5 Ion exchange/ softening 5 Lime soda ash softening 20 Copper sulfate treatment 5 Powdered activated carbon 5 Special Processes ( reverse osmosis, electrodialysis, other) 2 15 Residuals Disposal Discharge to lagoons 5 Discharge to lagoons and then raw water source 8 Discharge to raw water 10 Disposal to sanitary sewer 3 Mechanical dewatering 5 On site disposal 5 Land application 5 Solids composting 5 Facility Characteristics Instrumentation ( Choose only one of the following) · Use of SCADA or similar instrumentation systems to provide data w/ no process operation 0 · Use of SCADA or similar instrumentation systems to provide data w/ limited process operation 2 · Use of SCADA or similar instrumentation systems to provide data w/ moderate process operation 4 12 · Use of SCADA or similar instrumentation systems to provide data w/ extensive or total process operation 6 Clearwell size less than average day design flow 5 List the name and address of contact person and dates of employment. Total Points VSWS/ SWWS 30 points or less and a maximum population of 3300 persons Class I 30 points or less Class III 56 75 points Class II 31 55 points Class IV 76 points and greater Operator Classification EPA will consider the following criteria when determining whether a system has a certified operator:

$ EPA asks all owners of community and nontransient noncommunity water systems in Indian country to place the direct supervision of their water system, including each treatment facility and/ or distribution system, under the responsible charge of an operator( s) holding a valid certification equal to or greater than the classification of the treatment facility and/ or distribution system.

$ At a minimum, the operator( s) in responsible charge must hold a valid certification equal to or greater than the classification of their water system, including each treatment facility and distribution system, as determined by EPA.

$ EPA asks that all personnel making process control/ system integrity decisions about water quality or quantity that affect public health hold a valid certification.

$ A designated certified operator must be " available" ( see section V  definitions) for each operating shift.

2. Operator Qualifications $ Take and pass an exam that demonstrates that the applicant has the necessary skills, knowledge, ability and judgment as appropriate for the classification of the system. All exams must be validated.

$ Have a high school diploma or a general equivalency diploma ( GED). Certification providers may allow experience and/ or relevant training to be substituted for a high school diploma or GED. Education, training, or experience that is used to meet the education requirement for any class of certification may not be used to meet the experience requirement outlined below.

$ Have the defined minimum amount of on the job experience for each appropriate level of certification. The amount of experience requested increases with each classification level. Post high school education may be substituted for experience. Credit may be given for experience in a related field ( e. g., wastewater). Education, 13 training, or experience that is used to meet the experience requirement for any class of certification may not be used to meet the education requirement.

Grandparenting EPA recognizes that there are many competent small system operators that may not meet the initial requirements to become certified. EPA believes that utilities in Indian country may need a transition period to allow these operators to continue to operate the system through " grandparenting". The terminology " grandparenting of operators," as used in the context of these guidelines, means exempting operators from meeting the initial certification requirements; such as having a high school education ( or equivalent) and passing an exam. In these situations, the operator could be allowed grandparented certification initially, but would be required to meet all of the requirements for certification renewal ( including training).

Grandparenting determinations regarding systems that will be receiving DWIG TSA grants will be made by EPA Regions on a case by case basis and will be based on factors such as system size and compliance history, operator experience and knowledge, system complexity, and level of treatment. The level of grandparented certifications will also be determined by EPA Regions. In these cases, responsibilities for tracking training status, and decisions made with regards to the grandparenting provision fall upon both the certification providers and EPA Regions.

System Owner's Responsibility:

$ The system owner will be required to apply to the appropriate EPA Region for grandparented certification for the operator( s) in responsible charge within two years of the effective date of these guidelines.

EPA Responsibilities and General Grandparenting Restrictions:

$ The EPA Region has the responsibility to review and accept or decline applications for grandparented certification. The EPA Region will send a response to the system owner stating the determination of the Region on the eligibility of the operator for grandparented certification.

$ The grandparented certification of the operator will be site specific and nontransferable to other operators.

$ EPA will work with certification providers to determine the training/ renewal status of operators with grandparented certification $ If the classification of the plant or distribution system changes to a higher level, then the grandparented certification will no longer be valid. 14 $ If the operator chooses to work for a different water system, he or she needs to meet the initial certification requirements for that system and will lose their grandparented certification.

Certification Provider Responsibilities:

If certification providers choose to include a grandparenting provision in their programs, the following must be specified:

$ After an operator is grandparented by EPA, ensure he or she has, within some time period specified by the certification provider, met all requirements to obtain grandparent certification renewal, including payment of any necessary fees, acquired necessary training to meet the renewal requirements, and demonstrated the skills, knowledge, ability, and judgment for that classification.

$ Special renewal requirements for grandparented operators must be included to ensure they have the knowledge, skill, ability, and judgment to operate the system for which they were grandparented.

$ Certification providers must accept EPA's determination on operator grandparent status, and track operator training. This may include providing EPA with a list of grandparent renewal status provided through the program and the type and amount of training provided.

3. Program Implementation $ The certification provider must have the ability to revoke or suspend operator certifications, or take other appropriate action if EPA or the provider discover operator misconduct. Examples of operator misconduct include: fraud, falsification of application, falsification of operating records, gross negligence in operation, incompetence, and/ or failure to use reasonable care or judgment in the performance of duties. The certification provider must have a process for review of suspensions and revocations.

$ EPA retains the right not to recognize an operator's certification; this lack of recognition can be based on operator misconduct regardless of whether the provider revokes the certification.

$ EPA HQ will organize a peer review among the Regions to promote national consistency among regional implementation of the Tribal Drinking Water Operator Certification Program.

EPA Regions will track operator certification and will work with certification providers to verify what systems have certified operators. Certification providers will be required to 15 track operator status and training that supports certification renewal and to report this information to EPA.

4. Certification Renewal A certification provider's renewal program should include the following requirements:

$ Certification provider programs must establish training requirements for renewal based on the level of certification held by the operator.

$ Certification provider programs must require all operators ( including grandparented operators) to acquire necessary amounts and types of approved training. The provider and EPA may determine other requirements as deemed necessary, such as passing a test.

$ Certification provider programs must include a fixed renewal cycle not to exceed three years.

$ Certification provider programs must include a provision for an individual to recertify if the individual fails to renew, or qualify for renewal, within the three year renewal cycle AND two additional years lapse after the certificate expires.

5. Recertification $ Certification providers will have a process for the recertification of those individuals whose certification has expired for a period exceeding two years. This process should include: review of the individual's experience and training, and reexamination. A review process should be developed for individuals whose certificates have been revoked or suspended.

6. Stakeholder Involvement and Program Review $ Stakeholder involvement is important to the public health objectives of the program. It helps to ensure the relevancy and validity of the program, and the confidence of all interested parties.

$ EPA HQ will include ongoing stakeholder involvement in the revisions, review, and subsequent operations of this voluntary Tribal Drinking Water Operator Certification Program for Indian country. Examples of stakeholders include: operators, environmental/ public health groups, the general public, Tribal representatives, consumer groups, technical assistance providers, utility managers, and trainers.

7. Certification Provider Requirements $ Certification providers must have an operation plan. 16 $ Certification providers must have an outline of training requirements and continuing education units, as well as a certification plan which includes certification and renewal fees.

$ Certification providers must outline the geographic area they will serve.

$ Certification providers must have a mechanism for tracking operator status and training.

$ Certification providers must provide staff qualifications.

$ Certification providers must have sufficient resources to adequately sustain an operator certification program ( components include, but are not limited to: staff, data management, testing, administration, and training approval).

$ Certification providers must include stakeholder involvement when developing and/ or revising their programs.

EPA will perform periodic reviews of operator certification programs in Indian country. Examples of items to review include: exam items for relevancy and validity, budget and staffing, training relevancy, training needs through examination performance, and data management system.

IV. SUBMITTAL PROCESS FOR CERTIFICATION PROVIDERS A. Submittal of Tribal Operator Certification Programs After the publication of Final Guidelines, all interested certification/ training providers may send their program to U. S. EPA Headquarters, Attn: Jill Nogi, Office of Ground Water and Drinking Water ( 4606M), 1200 Pennsylvania Ave., N. W., Washington, D. C., 20460. EPA will then coordinate a program review with the appropriate Regions.

B. Submittal Contents The Provider should submit an explanation of all key elements outlined in the baseline standards. V. DEFINITIONS Administrator: The Administrator of the United States Environmental Protection Agency.

Available: Based on system size, complexity, and source water quality, a certified operator must be on site or able to be contacted as needed to initiate the appropriate action in a timely manner.

Community Water System ( CWS): A public water system providing water to at least 15 service connections used by year round residents or regularly serves at least 25 year round residents.

Distribution System: Any combination of pipes, tanks, pumps, etc. which delivers water from the source( s) and/ or treatment facility( ies) to the consumer. 17 Distribution System Complexity: Examples include: pressure zones, booster stations, storage tanks, fire protection, chlorination, non residential consumers, cross connection potential, demand variations, size of pipes, total distance of pipes and/ or total geographic area.

Grandparenting: The exemption for existing operator( s) in responsible charge from meeting initial education and/ or examination requirements in order to become certified for the class of certification the system has been assigned.

Indian Country: Indian country is defined at 18 U. S. C. § 1151 as: "( a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights of way running through the reservation, ( b) all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and ( c) all Indian allotments, the Indian titles to which have not been extinguished, including rights ofway running through the same."

Nontransient Noncommunity ( NTNC) Water System: Is a public water system that is not a community water system and that regularly serves at least 25 of the same persons over six months per year. Common types of NTNC water systems are those serving schools, day care centers, factories, restaurants, nursing homes, casinos, and hospitals.

Operating Shift: That period of time during which operator decisions that affect public health are necessary for proper operation of the system.

Operator Certification Provider in Indian Country: An EPA approved entity that provides a certification program for operators of water systems in Indian country.

Regions: In addition to Headquarters in Washington, DC, EPA is divided into 10 geographical areas or regions of the country ( see: http:// www. epa. gov/ epahome/ locate2. htm)

Responsible Charge: The Operator( s) in Responsible Charge is defined as the person( s) designated by the owner to be the certified operator( s) who makes decisions regarding the daily operational activities of a public water system, water treatment facility, and/ or distribution system, that will directly impact the quality and/ or quantity of drinking water.

Source Water: Examples include: type ( surface water, groundwater, groundwater under the influence of surface water, purchased water), quality ( variability), and/ or protection ( e. g., wellhead protection).

Treatment Facility: Any place( s) where a community water system or nontransient noncommunity water system alters the physical or chemical characteristics of the drinking water.

Validated Exam: An exam that is independently reviewed by subject matter experts to ensure exam is based on a job analysis and related to the classification of the system or facility.

VI. ACRONYMS ABC B Association of Boards of Certification 18 CWS B Community Water System DWIG TSA B Drinking Water Infrastructure Grant Tribal Set Aside DWSRF B Drinking Water State Revolving Fund EPA B Environmental Protection Agency GED B General Equivalency Diploma NTNCWS or NTNC B Nontransient Noncommunity water system OW B Office of Water SDWA B Safe Drinking Water Act SDWIS B Safe Drinking Water Information System


[Federal Register Volume 78, Number 48 (Tuesday, March 12, 2013)]
[Notices]
[Pages 15771-15773]
[FR Doc No: 2013-05634]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69060]

Order Granting a Temporary Exemption Pursuant to Section 36(a)(1)
of the Securities Exchange Act of 1934 From the Filing Deadline
Specified in Rule 613(a)(1) of the Exchange Act

March 7, 2013.
    Rule 613(a)(1) of the Securities Exchange Act of 1934 (``Exchange
Act'') \1\ requires the Financial Industry Regulatory Authority, Inc.
(``FINRA'') and the seventeen registered national securities exchanges
(collectively, the ``SROs'') to ``jointly file on or before 270

days from the date of publication of the Adopting Release [for Rule 613
of the Exchange Act \2\] in the Federal Register a national market
system plan to govern the creation, implementation, and maintenance of
a consolidated audit trail and central repository as required by [the
rule].'' The Adopting Release for Rule 613 was published in the Federal
Register on August 1, 2012,\3\ thus requiring the national market
system plan (the ``NMS plan'') to be filed on or before April 28,
2013.\4\ On February 8, 2013, the Commission received a request from
the SROs, pursuant to Rule 0-12 under the Exchange Act,\5\ that the
Securities and Exchange Commission (``Commission'') grant a temporary
exemption under Section 36 of the Exchange Act,\6\ from the deadline
specified in Rule 613(a)(1) of the Exchange Act \7\ for submitting the
NMS plan to the Commission.\8\
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    \1\ 17 CFR 242.613(a)(1).
    \2\ 17 CFR 242.613.
    \3\ Securities Exchange Act Release No. 67457 (July 18, 2012),
77 FR 45722 (August 1, 2012) (``Adopting Release'').
    \4\ April 28, 2013, is a Sunday. Therefore, in accordance with
Rule 160(a) of the Commission Rules of Practice, the deadline for
filing the NMS plan is Monday, April 29, 2013. The SROs, however,
had established an earlier deadline for the filing of the NMS plan
of Friday, April 26, 2013.
    \5\ 17 CFR 240.0-12.
    \6\ 15 U.S.C. 78mm(a)(1).
    \7\ 17 CFR 242.613(a)(1).
    \8\ See Letter from Robert L.D. Colby, Chief Legal Officer,
FINRA, to Elizabeth M. Murphy, Secretary, Commission, dated February
7, 2013 (the ``Request Letter'').
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    In the Request Letter, the SROs noted that Rule 613 requires that
they include in the NMS plan ``cost estimates for the proposed
solution, and a discussion of the costs and benefits of alternative
solutions considered but not proposed.'' \9\ They also noted that Rule
613 requires that the NMS plan include a discussion of ``[t]he process
by which the [SROs] solicited views of their members and other
appropriate parties regarding the creation, implementation, and
maintenance of the consolidated audit trail, a summary of the views of
such members and other parties, and how the [SROs] took such views into
account in preparing the [NMS plan].'' \10\
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    \9\ See Request Letter (quoting Adopting Release, supra 3, at
45725).
    \10\ See Request Letter (quoting 17 CFR 242.613(a)(1)(xi)).
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    In order to satisfy these requirements, the SROs believe that
conducting a request for proposal (``RFP'') process is necessary prior
to filing an NMS plan. The SROs believe that such a process will ensure
that potential alternative solutions for creating the consolidated
audit trail can be presented to the SROs for their consideration, and
will provide the SROs with information necessary to prepare a detailed
cost/benefit analysis as required by Rule 613. To ensure that the RFP
process is effective, the SROs believe the concepts that will be
contained in the RFP should be subject to public comment before the
document is finalized and formally published. The SROs believe that
public comment will ensure that the RFP addresses areas of concerns to
the industry and the SROs, and will also provide potential bidders with
information on the RFP prior to its formal publication. To this end,
the SROs published an RFP concept document on December 5, 2012, and
requested public feedback by January 18, 2013.\11\
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    \11\ See Request Letter.
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    The SROs stated in their Request Letter that they do not believe
that the 270-day time period provided for in Rule 613(a)(1) provides
sufficient time for the development of the RFP, formulation and
submission of bids, and review and evaluation of such bids. The SROs
also stated that they believe additional time beyond the 270 days
provided for in Rule 613(a)(1) is necessary in order to provide
sufficient time for effective consultation with and input from the
industry and the public on the proposed solution chosen by the SROs for
the creation of the consolidated audit trail at the conclusion of the
RFP process and the NMS plan itself. The SROs believe that such a
comment process is necessary in order to gather information needed to
perform an effective cost/benefit analysis, including the estimated
costs to broker-dealers and other market participants of building the
consolidated audit trail in accord with the proposed solution, as well
as to meaningfully assess and respond to the comments and draft the
final NMS plan for submission to the Commission.
    In the Request Letter, the SROs provided the following estimated
timeline, which is based on their current expectation for conducting
the RFP process and drafting the NMS plan:

 December 5, 2012: The SROs published an RFP concept document
for comment
 January 18, 2013: Deadline to submit comments on the RFP
concept document made publicly available (i.e., a 45-day comment
period)
 February 2013: The SROs will publish the final RFP for bids
 March 2013: The SROs will solicit public comment on certain
portions of the draft NMS plan that are not dependent on the RFP
process and can benefit from public comment
 April 2013: Deadline for submitting bids in response to the
RFP
 July 2013: The SROs will select a proposed solution after
reviewing and evaluating the RFP bids
 August 2013: The SROs will solicit public comment on other
specific portions of the proposed NMS plan that the SROs believe can
benefit from public comment and that incorporate the RFP process and
the proposed solution, including soliciting estimates on industry costs
 October 2013: Comments must be submitted on the proposed
solution (i.e., a 60-day comment period)
 December 6, 2013: The SROs file the proposed NMS plan with the
Commission
    For the reasons set forth above, the SROs stated that a temporary
exemption from the filing deadline until December 6, 2013 is
``necessary to allow the SROs to conduct the thoughtful and
comprehensive analysis this important regulatory initiative deserves.''
\12\ The SROs also stated their belief that ``the timeline outlined
above will lead to a significantly better and more informed process
and, as a result, the proposed solution will be the result of a more
meaningful and careful analysis.'' \13\
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    \12\ See Request Letter.
    \13\ Id.
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    Section 36 of the Exchange Act \14\ authorizes the Commission, by
rule, regulation, or order, to exempt, either conditionally or
unconditionally, any person, security, or transaction, or any class or
classes of persons, securities, or transactions, from any provision or
provisions of the Exchange Act or any rule or regulation thereunder, to
the extent that such exemption is necessary or appropriate in the
public interest, and is consistent with the protection of investors.
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    \14\ 15 U.S.C. 78mm.
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    After considering the SROs' proposed process for developing the NMS
plan, the Commission finds that it is appropriate in the public
interest, and is consistent with the protection of investors, to grant
the SROs a temporary exemption from the deadline for filing the NMS
plan contained in Rule 613(a)(1) \15\ until December 6, 2013. The
Commission understands that the creation of a consolidated audit trail
is a significant undertaking and that a proposed NMS plan must include
detailed information and discussion about many things, including the

methods for reporting the required data; a detailed estimate of the
costs to plan sponsors and to members of the plan sponsors of creating,
implementing, and maintaining the consolidated audit trail (including
issues relating to funding of the consolidated audit trail); an
analysis of the impact on competition, efficiency and capital formation
of creating, implementing and maintaining the NMS plan; and a
discussion of any reasonable alternative approaches that the plan
sponsors considered including a description of any such alternative
approach, the relative advantages and disadvantages of each such
alternative, including an assessment of the alternative's costs and
benefits, and the basis upon which the plan sponsors selected the
approach in the NMS Plan submitted.\16\
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    \15\ As noted above, the current deadline for submitting the NMS
plan is April 29, 2013. This deadline is calculated pursuant to Rule
613(a)(1) which requires the NMS plan to be filed 270 days from the
date of publication of the Adopting Release in the Federal Register.
See note 4, supra.
    \16\ See Rule 613(a)(1).
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    Additionally, given that the planned RFP process as described in
the Request Letter is expected to include multiple solicitations for
public comment, the Commission believes that it is appropriate in the
public interest and consistent with the protection of investors to
provide the SROs with additional time. This additional time to complete
the RFP process should allow the SROs to engage in a more thoughtful
and comprehensive process for the development of an NMS plan. In this
regard, the Commission notes that the additional time to solicit
comment from the industry and the public at certain key points in the
development of the NMS plan could identify issues that can be resolved
earlier in the development of the consolidated audit trail and prior to
filing the NMS plan with the Commission. In granting the SROs' request,
the Commission expects the SROs to work diligently to adhere to the
milestones specified by the SROs in the Request Letter. The Commission
also expects the SROs to utilize the additional time to prepare a
detailed and complete NMS plan for the Commission and the public to
consider.
    Accordingly, it is hereby ordered, pursuant to Section 36 of the
Exchange Act,\17\ that the SROs are temporarily exempted from the
deadline for submitting the NMS plan to govern the creation,
implementation, and maintenance of a consolidated audit trail and
central repository contained in Rule 613(a)(1) until December 6, 2013.
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    \17\ 15 U.S.C. 78mm.

    By the Commission.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-05634 Filed 3-11-13; 8:45 am]
BILLING CODE 8011-01-P