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Safe Drinking Water Act Section 1441: A Tool to Combat Supply Chain Issues for Public Water Systems and POTWs

As the United States continues experiencing nationwide supply chain issues, it comes as little surprise that these problems are also impacting the availability of drinking water and wastewater treatment chemicals.  Public water systems (PWSs) and publicly owned treatment works (POTWs) have reported shortages of gaseous chlorine as well as other critical chemicals and supplies.  US EPA encourages PWSs and POTWs to work with their chemical suppliers, consult their primary agency, and seek local resources to address shortages where possible.  However, if supply complications continue after exploring these avenues, PWSs and POTWs may seek relief under Section 1441 of the Safe Drinking Water Act (SDWA).

Section 1441 of the SDWA provides that:

If any person who uses chlorine, activated carbon, lime, ammonia, soda ash, potassium permanganate, caustic soda, or other chemical or substance for the purpose of treating water in any public water system or in any public treatment works determines that the amount of such chemical or substance necessary to effectively treat such water is not reasonably available to him or will not be so available to him when required for the effective treatment of such water, such person may apply to the Administrator for a certification (hereinafter in this section referred to as a “certification of need”) that the amount of such chemical or substance which such person requires to effectively treat such water is not reasonably available to him or will not be so available when required for the effective treatment of such water.

42 U.S.C. § 300j(a).  If the Administrator issues a certification of need, then “[n]ot later than seven days following the issuance of such certification, the President or his delegate shall issue an order requiring the provision to such person of such amounts of such chemical or substance as the Administrator deems necessary in the certification of need issued for such person.”  Id. § 300j(c)(1).  The Department of Commerce issues such an order.

If a PWS or POTW is experiencing supply chain concerns, US EPA provides numerous resources online regarding water sector supply chain resilience, including instructions for using Section 1441.  Even after a PWS or POTW files for a Section 1441 certification of need, US EPA may be able to assist in resolving the issues by providing direct assistance to the applicant, without requiring the Department of Commerce to issue a Section 1441 order.  Yet, under Section 1441, US EPA may exercise its full authority to issue a certification of need if direct assistance cannot resolve the concerns.  As supply chain issues linger into 2022, PWSs and POTWs should remain prepared to work with suppliers and local resources to resolve such concerns but should also stand ready to use the formal Section 1441 framework if necessary.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 19
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