Notices. Notice

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 6450-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EC04-10-000, et al.] FPL Energy New Mexico Wind, LLC, et al.; Electric Rate and Corporate Filings December 9, 2003. The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification. 1. FPL Energy New Mexico Wind, LLC and FPL Energy American Wind, LLC [Docket EC04-10-000] Take notice that on December 4, 2003, FPL Energy New Mexico Wind, LLC and FPL Energy American Wind, LLC (Applicants) submitted for filing a revision to Attachment A of Applicant's application that was approved by the Commission's November 26, 2003, Order in Docket No.

EC04-10-000. Applicants' filing contains a request for expedited clarification of the Commission's November 26, 2003, Order, as well as a request for a shortened comment period. *Comment Date:* December 11, 2003. 2. Covanta Energy Corporation [Docket No. EC04-22-000] Take notice that on December 4, 2003, Covanta Energy Corporation submitted a Notice of Withdrawal of its November 13, 2003, application in the above-referenced proceeding. *Comment Date:* December 26, 2003. 3. Oswego Cogen Company, LLC;

Sithe/Independence Equity LLC; and Sithe/Independence Power Partners, L.P. [Docket No. EC04-33-000] Take notice that on December 5, 2003, Oswego Cogen Company, LLC (Oswego), Sithe/Independence Equity LLC (Equity), and Sithe/Independence Power Partners, L.P. (Independence) (collectively, the Applicants) filed with the Federal Energy Regulatory Commission an application pursuant to section 203 of the Federal Power Act for authorization of a disposition from Oswego to Equity of a 40% limited partnership interest in Independence.

Independence states it owns a 1,060 MW generating facility in Oswego, New York. Applicants state that the transaction will have no adverse effect on competition, rates or regulation. *Comment Date:* December 26, 2003. 4. Onondaga Cogeneration Limited Partnership [Docket Nos. EC04-34-000 and ER00-895-002] Take notice that on December 5, 2003, Onondaga Cogeneration Limited Partnership (Onondaga), submitted an application pursuant to section 203 of the Federal Power Act and a notice of status change, seeking authorization for an internal restructuring.

This internal restructuring, together with a subsequent transaction, would result in the transfer of indirect control of certain jurisdictional facilities associated with Onondaga's 91-MW dual fuel, combined-cycle merchant energy facility located in Geddes, New York. Onondaga requests expedited consideration of its application and certain waivers. Onondaga states that the transaction will have no effect on competition, rates or regulation and is in the public interest. *Comment Date:* December 26, 2003. 5.

Sithe Energy Marketing, L.P., AG-Energy, L.P., Power City Partners, L.P., Seneca Power Partners, L.P., Sterling Power Partners, L.P., and Sithe/Independence Power Partners, L.P. [Docket Nos. ER02-2202-003, ER98-2782-005, and ER03-42-004] Take notice that on December 4, 2003, Sithe Energy Marketing, L.P., AG-Energy, L.P., Power City Partners, L.P., Seneca Power Partners, L.P., Sterling Power Partners, L.P., and Sithe/Independence Power Partners, L.P. (collectively, the Sithe Entities) tendered for filing a notice of change in status pursuant to section 205 of the Federal Power Act with respect to their authority to engage in wholesale sales of capacity, energy and ancillary services at market-based rates.

The change in status involves the transfer of Oswego Cogen Company, LLC's 40% ownership interests in Sithe/Independence Power Partners, L.P. to Sithe/Independence Equity LLC, a transaction that will result in Sithe Energies, Inc. holding, directly and indirectly, 100% of the ownership interests in Sithe/Independence Power Partners, L.P. *Comment Date:* December 26, 2003. 6. New York Independent System Operator Inc. [Docket No. ER03-690-003] Take notice that on November 26, 2003, New York Independent System Operator Inc.

(NYISO) filed a Report on Market Competitiveness at the New York Independent System Operator Proxy Busses. NYISO states that this report was filed in compliance with directives in the Commission's August 22, 2003 Order Conditionally Accepting Proposed Tariff Revisions, 104 FERC ¶ 61,220. *Comment Date:* December 26, 2003. 7. Columbus Southern Power Company [Docket No. ER04-150-001] Take notice that on November 20, 2003, Columbus Southern Power Company

(CPS)submitted for filing a Certificate of Concurrence related to a November 3, 2003, Notice of Cancellation of its Service Agreement No. 3. CPS states that the certificate was not signed at the time of the cancellation and is now ready to be included with the cancellation. *Comment Date:* December 19, 2003. 8. NEO California Power LLC [Docket No. ER04-220-001] Take notice that on December 5, 2003, NEO California Power LLC (NEO California) tendered for filing revised rate schedule sheets for the Must-Run Service Agreement (RMR Agreement) between NEO California and the California Independent System Operator Corporation (California ISO) an amendment to one of the revised rate schedule sheets that was filed in ER04-220-000 on November 21, 2003. *Comment Date:* December 26, 2003. 9. APN Starfirst, LP [Docket No. ER04-226-001] Take notice that on December 5, 2003, APN Starfirst, LP (Starfirst) filed an amended Rate Schedule FERC No. 1 to comply with Federal Energy Regulatory Commission requirements in Order 614. *Comment Date:* December 26, 2003. 10. Central Hudson Gas & Electric Corporation [Docket No. ER04-258-000] Take notice that on December 4, 2003, Central Hudson Gas & Electric Corporation (Central Hudson) tendered for filing a Notice of Cancellation of Rate Schedule FERC No. 63, effective June 18, 1981, in Docket No. ER81-604-000. Central Hudson states that the contract was terminated in accordance with its terms as a result of the sale, on January 30, 2001, of the Central Hudson electric generation units designated in the contract. Central Hudson requests waiver on the notice requirements set forth in 18 CFR 35.11 of the regulations to permit the Notice of Cancellation to be effective February 1, 2001. Central Hudson states that a copy of its filing was served on Orange & Rockland Utilities, Inc., and the State of New York Public Service Commission. *Comment Date:* December 26, 2003. 11. Central Hudson Gas & Electric Corporation [Docket No. ER04-259-000] Take notice that on December 4, 2003, Central Hudson Gas & Electric Corporation (Central Hudson) tendered for filing a Notice of Cancellation of Rate Schedule FERC No. 66, effective April 19, 1983, in Docket No. ER83-533-000. Central Hudson states that the contract was terminated in accordance with its terms as a result of the sale, on January 30, 2001, of the Central Hudson electric generation units designated in the contract. Central Hudson requests waiver on the notice requirements set forth in 18 CFR 35.11 of the regulations to permit the notice of cancellation to be effective February 1, 2001. Central Hudson states that a copy of its filing was served on New York State Electric and Gas Corporation, and the State of New York Public Service Commission. *Comment Date:* December 26, 2003. 12. Tampa Electric Company [Docket No. ER04-260-000] Take notice that on December 4, 2003, Tampa Electric Company (Tampa Electric) tendered for filing a Notice of Cancellation of its transaction-specific service agreement with Cargill Fertilizer, Inc. (Cargill) under Tampa Electric's open access transmission tariff. Tampa Electric proposes that the cancellation be made effective on January 1, 2004. Tampa Electric states that copies of the filing have been served on Cargill and the Florida Public Service Commission. *Comment Date:* December 26, 2003. 13. PJM Interconnection, L.L.C. [Docket No. ER04-261-000] Take notice that on December 4, 2003, PJM Interconnection, LLC (PJM), submitted for filing an interconnection service agreement

(ISA)among PJM, American Project Development Corp/American Hydro Power Company/American Hydro Power Partners, L.P. and Pennsylvania Electric Company. PJM requests a waiver of the Commission's 60-day notice requirement to permit a November 4, 2003, effective date for the ISA. PJM states that copies of this filing were served upon the parties to the agreements and the state regulatory commissions within the PJM region. *Comment Date:* December 26, 2003. Standard Paragraph Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at *http://www.ferc.gov* , using the “FERRIS” link. Enter the docket number excluding the last three digits in the docket number filed to access the document. For assistance, call

(202)502-8222 or TTY,

(202)502-8659. Protests and interventions may be filed electronically via the Internet in lieu of paper; *see* 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Magalie R. Salas, Secretary. [FR Doc. E3-00611 Filed 12-22-03; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EC04-36-000, et al.] Sunbury Generation, LLC, et al.; Electric Rate and Corporate Filings December 11, 2003. The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification. 1. Sunbury Generation, LLC, and Duquesne Power, L.P. [Docket No. EC04-36-000] Take notice that on December 8, 2003, Sunbury Generation, LLC (Sunbury) and Duquesne Power, L.P. (Duquesne) (collectively, Applicants) tendered for filing an application requesting all necessary authorizations under section 203 of the Federal Power Act, 16 U.S.C. 824b, for Applicants to engage in the transfer from Sunbury to Duquesne of

(1)an approximately 436 MW generating facility located in Snyder County, Pennsylvania, and

(2)Sunbury's Rate Schedule FERC No. 2. Applicants state that copies of this filing have been served on the Pennsylvania Public Utility Commission. *Comment Date:* December 29, 2003. 2. New York Independent System Operator, Inc.; Dynegy Power Marketing, Inc. [Docket No. EL03-26-001] Take notice that on December 5, 2003, the New York Independent System Operator, Inc. (NYISO) and Dynegy Power Marketing, Inc. (Dynegy) are jointly submitting exhibits presented to the Arbitrator in American Arbitration Association proceeding no. 13 198 00247 02. The exhibits were not previously filed with the Commission. NYISO and Dynegy state that certain information relating to the level of bids is confidential and therefore are requesting privileged treatment for portions of the Exhibits pursuant to 18 CFR 388.112. *Comment Date:* December 19, 2003. 3. KES Kingsburg, L.P. [Docket Nos. EL04-33-000 and QF86-155-004] Take notice that on December 8, 2003, KES Kingsburg, L.P. (Kingsburg) filed in the above-referenced dockets a request for a temporary waiver of the efficiency standard for its qualifying cogeneration facility in Kingsburg, California (the Facility), pursuant to section 292.205(c) of the Commission's regulations. Kingsburg requests waiver for calendar year 2003 due to unforeseen mechanical failures within the Facility's steam turbine. *Comment Date:* January 7, 2004. 4. City of Vernon, California [Docket No. EL04-34-000] Take notice that on December 8, 2003, the City of Vernon, California (Vernon) tendered for filing the annual update to its Transmission Revenue Balancing Account Adjustment (TRBA Adjustment) and to Appendix I of its Transmission Owner Tariff (TO Tariff), to reflect that update. Vernon also states that pursuant to paragraph 1.4 of the Settlement approved in Docket No. EL02103, 102 FERC 61,141 (Feb. 5, 2003), Vernon is providing to the California Independent System Operator Corporation

(ISO)on a confidential basis for ISO review and verification, and submitting to the Commission on a confidential basis under 18 CFR 388.112, a volume of certain confidential data. Vernon states that nonconfidential, redacted versions of this data are also being filed with the Commission and served. Consistent with the ISO's FERC Electric Tariff, Vernon requests a January 1, 2004, effective date for its filing. Vernon states that copies of this filing have been served on the California Independent System Operator Corporation and the seven other Participating Transmission Owners, as well as served upon all individuals on the service list in Commission Docket No. EL03-31. *Comment Date:* December 29, 2003. 5. Tenaska Alabama II Partners, L.P. [Docket No. ER01-137-001] Take notice that on December 8, 2003, Tenaska Alabama II Partners, L.P. (Tenaska Alabama II) submitted for filing with the Federal Energy Regulatory Commission its triennial updated market analysis in accordance with Appendix B of the Commission's Order issued December 8, 2000, and certain revisions to its FERC Electric Tariff, Original Volume. No. 1 Tenaska Alabama II states that this filing includes incorporation of the Market Behavior Rules set forth in the Commission's November 17, 2003, Order in Docket Nos. EL01-118-000 and EL01-118-001, Investigation of Terms and Conditions of Public Utility Market-Based Rate Authorizations, 105 FERC ¶ 61,218 (2003). *Comment Date:* December 29, 2003. 6. New York Independent System Operator, Inc. [Docket No. ER01-3001-008] Take notice that on December 1, 2003, the New York Independent System Operator, Inc. (NYISO) submitted a report which addresses:

(1)The NYISO's existing demand response programs, the status of real-time demand response mechanisms, and the effects of demand response programs on wholesale prices; and

(2)the status of new generation resources in the New York Control Area. This submittal represents the NYISO's fifth report in compliance with the Commission's October 25, 2001, Order. The NYISO states it has served a copy of this filing upon all parties that have executed service agreements under the NYISO's Open Access Transmission Tariff and Market Administration and Control Area Services Tariff. *Comment Date:* December 22, 2003. 7. Innovative Technical Services, L.L.C. [Docket No. ER03-763-001] Take notice that on December 3, 2003, Innovative Technical Services, L.L.C. (InTech-LLC) submitted a compliance filing to incorporate the market behavior rules adopted by the Commission on November 17, 2003, in Docket Nos. EL01-118-000 and EL01-118-001, into InTech-LLC's market based tariff. *Comment Date:* December 29, 2003. 8. Midwest Independent Transmission System Operator, Inc. [Docket No. ER03-1312-001] Take notice that on December 8, 2003, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) filed information amending its September 8, 2003, filing, to revise the Midwest ISO's Open Access Transmission Tariff

(OATT)by incorporating certain procedures relating to station power service. Midwest ISO states that the September 8, 2003 filing was made pursuant to section 205 of the Federal Power Act 16 U.S.C. 824(d), and part 35 of the regulations of the Federal Energy Regulatory Commission 18 CFR 35 *et seq.* *Comment Date:* December 29, 2003. 9. White Pine Copper Refinery, Inc. [Docket No. ER04-262-000] Take notice that on December 5, 2003, White Pine Copper Refinery, Inc. (White Pine) filed with the Commission a Petition for acceptance of its initial rate schedule, FERC Electric Tariff, Original Volume No. 1, and request for authority to sell electric energy at market-based rates, certain blanket approvals, and waiver of certain Commission regulations. White Pine has requested waiver of the 60-day notice period in order to allow an effective date of December 5, 2003. *Comment Date:* December 29, 2003. 10. Nordic Marketing of Massachusetts, L.L.C. [Docket No. ER04-263-000] Take notice that on December 5, 2003, Nordic Marketing of Massachusetts, L.L.C. petitioned the Commission to: Accept for filing its Rate Schedule FERC No. 1, which will permit it to sell electric energy and capacity to wholesale customers at market-based rates and permit transmission capacity reassignment; waive 60 days' notice and allow that rate schedule to become effective upon acceptance, but no later than February 3, 2004; and, grant such other waivers and blanket authorizations as have been granted to other power marketers. *Comment Date:* December 29, 2003. 11. Nordic Marketing of Michigan L.L.C. [Docket No. ER04-264-000] Take notice that on December 5, 2003, Nordic Marketing of Michigan, L.L.C. petitioned the Commission to: accept for filing its Rate Schedule FERC No. 1, which will permit it to sell electric energy and capacity to wholesale customers at market-based rates and permit transmission capacity reassignment; waive 60 days' notice and allow that rate schedule to become effective upon acceptance, but no later than February 3, 2004; and, grant such other waivers and blanket authorizations as have been granted to other power marketers. *Comment Date:* December 29, 2003. 12. Nordic Marketing of New York, L.L.C. [Docket No. ER04-265-000] Take notice that on December 5, 2003, Nordic Marketing of New York, L.L.C. petitioned the Commission to: Accept for filing its Rate Schedule FERC No. 1, which will permit it to sell electric energy and capacity to wholesale customers at market-based rates and permit transmission capacity reassignment; waive 60 days' notice and allow that rate schedule to become effective upon acceptance, but no later than February 3, 2004; and, grant such other waivers and blanket authorizations as have been granted to other power marketers. *Comment Date:* December 29, 2003. 13. Central Vermont Public Service Corporation [Docket No. ER04-266-000] Take notice that on December 5, 2003, Central Vermont Public Service Corporation (Central Vermont) filed an executed version of Second Revised Service Agreement No. 15, a Network Integration Transmission Service Agreement and Network Operating Agreement (Revised Service Agreement) with Vermont Electric Cooperative, Inc.

(VEC)under Central Vermont's FERC Electric Tariff, Second Revised Volume No. 7 (OATT). Central Vermont states that copies of the filing were served upon the VEC and the Vermont Public Service Board. *Comment Date:* December 29, 2003. 14. Pacific Gas and Electric Company [Docket No. ER04-267-000] Take notice that on December 11, 2003, Pacific Gas and Electric Company (PG&E) tendered for filing Generator Special Facilities Agreement (GSFA), and Generator Interconnection Agreement

(GIA)and Letter Amendment Extensions between PG&E and Geysers Power Company, LLC (Geysers Power), and Notices of Termination of PG&E Rate Schedules FERC Nos. 204 and 205, as supplemented, and Notice of Termination of PG&E 2nd Revised Service Agreement No. 1 under FERC Electric Tariff, Sixth Revised Volume No. 5. PG&E states that copies of this filing have been served upon Geysers Power, the California Independent System Operator Corporation and the California Public Utilities Commission. *Comment Date:* December 29, 2003. 15. Duquesne Power, L.P.; Duquesne Light Co.; Monmouth Energy, Inc.; Metro Energy, L.L.C.; NM Colton Genco, L.L.C.; NM Mid-Valley Genco, L.L.C.; NM Milliken Genco, L.L.C. [Docket Nos. ER04-268-000, ER98-4159-003, ER99-1293-002, ER01-2317-002, ER03-320-003, ER03-321-003, and ER03-322-003] Take notice that on December 8, 2003, Duquesne Power, L.P., Duquesne Light Co., Monmouth Energy, Inc., Metro Energy, L.L.C., NM Colton Genco, L.L.C., NM Mid-Valley Genco, L.L.C., and NM Milliken Genco, L.L.C., tendered for filing a Notice of Change in Status and applications for certain waivers and authorizations under section 205 of the Federal Power Act. *Comment Date:* December 29, 2003. 16. The Morenci Water and Electric Company [Docket No. OA04-2-000] Take notice that on December 5, 2003, The Morenci Water and Electric Company tendered for filing a request for a disclaimer of jurisdiction that it is not a public utility under the Federal Power Act and a waiver of the reciprocity requirement, or in the alternative, a waiver of the requirements of Order Nos. 888 and 889 and certain regulations. *Comment Date:* January 5, 2004. Standard Paragraph Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with rules 211 and 214 of the Commission's rules of practice and procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at *http://www.ferc.gov* , using the “FERRIS” link. Enter the docket number excluding the last three digits in the docket number filed to access the document. For assistance, call

(202)502-8222 or TTY,

(EPA)finalized a memorandum that outlined its revised policy regarding regulatory requirements under the Safe Drinking Water Act

(SDWA)for submetered properties. The revised policy is shown in the SUPPLEMENTARY INFORMATION section of this notice, in its final memorandum form. Under SDWA section 1411, the national primary drinking water regulations apply to public water systems

(PWS)that have their own water source, treat, or “sell” water. EPA staff and program managers have previously issued memoranda stating that any building or property owner who meets the definition of a PWS and receives water from a regulated public water system, but bills tenants separately for this water, is “selling” the water and therefore is independently subject to SDWA's drinking water requirements. As a way to promote full cost and conservation pricing to achieve water conservation, the EPA is changing its interpretation of section 1411 as it applies to submetered properties. EPA believes that the addition of a submeter should not in any way change the quality of water provided to customers on these properties. In general, the scope of this policy is not intended to extend where the property in question has a large distribution system, serves a large population or serves a mixed (commercial/residential) population ( *e.g.* , many military installations/facilities or large mobile home parks). DATES: EPA's revised policy, as described in the section I.A. memorandum, effective December 16, 2003. ADDRESSES: Related documents, including EPA's response to public comments on the subject policy, can be accessed at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. For more information, *see* section I..B.1 of the SUPPLEMENTARY INFORMATION section. FOR FURTHER INFORMATION CONTACT: For more information please contact Ronald Bergman by phone at 202-564-3823, or by e-mail at *bergman.ronald@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Final Revised Policy Today, EPA is publishing a memorandum revising current policy regarding regulatory requirements under the Safe Drinking Water Act

(SDWA)of submetered properties. The memorandum changes EPA's interpretation of section 1411 as it applies in the specific context of submetering and direct billing of tenants. EPA published a proposed memo in the **Federal Register** on August 28, 2003 (68 FR 51777) and solicited public comments for 60 days. Comments were received from a variety of stakeholders, including State, county, and local governments, apartment building owners and associations, utility companies, and housing associations. Generally, commenters strongly supported the proposed policy and agreed that submetering promotes water conservation. Memorandum *Subject:* Applicability of the Safe Drinking Water Act to Submetered Properties. *From:* G. Tracy Mehan III, Assistant Administrator. *To:* Regional Administrators, Regions I-X. The purpose of this memorandum is to announce EPA's revised policy concerning the applicability of the Safe Drinking Water Act

(SDWA)to submetered properties. Submetering, as applied in this policy, means a billing process by which a property owner (or association of property owners, in the case of co-ops or condominiums) bills tenants based on metered total water use; the property owner is then responsible for payment of a water bill from a public water system. Under the revised policy, a property owner who installs submeters to track usage of water by tenants on his or her property will not be subject to SDWA regulations solely as a result of taking the administrative act of submetering and billing. Property owners must receive all of their water from a regulated public water system to qualify under the terms of this policy revision for submetered properties. EPA proposed the revised policy in the **Federal Register** on August 28, 2003 (68 FR 51777) and requested public comment. In response, the Agency received strong support for the revised policy on submetering from a variety of stakeholders. In light of this response, and because a key objective of the Agency is to promote water efficiency and conservation, EPA has decided to change the policy for submetering. Throughout the country, submetering of apartment buildings has been found to be an effective but little-used tool to support water conservation. Water conservation is an integral part of watershed protection, particularly in arid and drought-stricken areas. In addition to helping reduce the risk of water shortages, water conservation also provides other important benefits. Water conservation helps ensure in-stream flows, thereby providing protection for ecosystems, which can become out of balance when demands stress water resources. Water conservation also helps reduce stress on water supply and wastewater infrastructure making them less prone to failure. Further, the use of submeters to measure water consumption is a necessary pre-requisite to achieving full-cost and conservation pricing. Background Section 1401 of SDWA defines a public water system

(PWS)as a system that provides water through pipes or other constructed conveyances to the public for human consumption, if the system has at least 15 service connections or regularly serves at least 25 people. Under SDWA section 1411, the SDWA national primary drinking water regulations apply to PWSs that have their own water source, treat, or “sell” water. EPA staff and program managers had issued several memoranda stating that any building or property owner who met the definition of a PWS and received water from a regulated public water system without adding further treatment, but billed tenants separately for this water, would be considered to be “selling” the water and, therefore, would be independently subject to SDWA's drinking water requirements. Today's memorandum reflects a change in EPA's interpretation of section 1411 as it applies in the specific context of submetering. The EPA memoranda referenced above were based on a single statement in the 1974 legislative history for the SDWA in which Congress explained its intent in enacting section 1411. In that legislative history, the Committee report stated that it “intends to exempt businesses which merely store and distribute water provided by others, unless that business sells water as a separate item or bills separately for water it provides.” 1 Under EPA's previous interpretation, an owner of an apartment building or similar property who is exempt under section 1411 but merely installed a submeter and billed the tenants for the water, or simply began billing tenants (even without a submeter), would then be considered to be operating a fully regulated public water system, even though there had been no other change relevant to the delivery or potential health concerns associated with the water. This application of the legislative history has been cited as a discouragement to submetering and, as a result, to water conservation measures. 1 H. Rept. 93-1185 (93rd Cong., 2nd Session), reprinted in A Legislative History of the Safe Drinking Water Act, Committee Print Serial 97-9

(1982)at 549. After further review, we no longer believe that Congress originally intended the statute to be applied in this manner, or that it should continue to be the Agency's interpretation for the following reasons: • The legislative history from 1974 does not specifically address the submetering of apartment buildings or similar properties for water conservation purposes. Rather, the legislative history was one Committee's attempt to explain broadly what the term “selling” water in section 1411 might mean. The statute itself does not define the term “selling” or suggest an interpretation that any billing of water would automatically trigger full SDWA regulation. • Some owners of apartment buildings and other multifamily housing expressed concern that, under EPA's previous policy, the installation of submeters subjected them to the full regulatory requirements of the Safe Drinking Water Act (SDWA), comparable to the requirements imposed on water utilities. • In 1996, a Congressional committee expressed its concern that this application of SDWA might discourage the practice of submetering, as owners of a multifamily housing property ( *e.g.* , apartment buildings and/or complexes) would become subject to national primary drinking water regulations if they billed separately for water. Congress asked that EPA review its guidance on this matter to prevent unnecessary requirements that do not further public health protection and that might inhibit water conservation efforts. 2 In response, EPA agreed to reconsider the matter and issue further guidance. 3 2 H. Rept. 104-632 at 55 (1996). 3 H. Rept. 104-632 (104th Cong., 2d Sess.) at 55 and 134 (1996). • EPA's approach in previous memoranda may have created a disincentive to water conservation, which can undermine water quality over the long term. • Simply applying the concept of “sell” to every billing transaction is not appropriate. Revised Policy Consistent with Congressional requests to reconsider this matter, the Agency now believes that certain property owners, who had not previously been (or would not be) subject to SDWA's national primary drinking water regulations, and who install submeters to accurately track usage of water by tenants on his or her property, should not be subject to regulations solely as a result of taking the action to submeter and bill. The addition of a submeter should not in any way change the quality of water provided to customers on the property. A PWS that provides water to a property maintains responsibility for providing public notification under 40 CFR 141.201(c) (or approved State equivalent) to consumers. In addition, the PWS must make “good faith” efforts to provide the tenants with the annual Consumer Confidence Reports under 40 CFR 141.155(b). A submetered property would still be considered a PWS under SDWA section 1401, hence States and EPA would retain the ability to take corrective action under SDWA's emergency powers authority (section 1431) if public health risks arise. Scope of Revised Policy EPA received numerous comments asking that the revised policy be expanded beyond apartment buildings. EPA agrees that submetering to achieve water conservation may be appropriate for other property types, which share similar characteristics to an apartment building, and likewise should not be considered as “selling” under SDWA section 1411, simply because a submeter is installed and the property owner begins direct billing for the water. This description is the basis for the definition of submetering. Determinations of whether billing for water is a “sale” for purposes of section 1411, and whether systems are “ submetering” as that term is used in this policy, should be made by the Primacy Agency. In making a determination, the Primacy Agency should consider if the property has certain characteristics, such as a limited distribution system with no known backflow or cross connection issues; the majority of its plumbing is within a structure instead of underground; and property ownership is a single/individual (or association of property owners, in the case of co-ops or condominiums). Of course, for any system to be excluded under section 1411, it must receive all of its water from a regulated public water system. In general, the scope of this policy is not intended to extend where the property in question has a large distribution system, serves a large population or serves a mixed (commercial/residential) population ( *e.g.* , many military installations/facilities or large mobile home parks). Although EPA is not requiring that submetered systems be regulated, each State has the flexibility to determine whether, and how, to best track properties that submeter. For example, in Alabama, the State defines a submetered property as a “segmented public water system” and requires that it have access to a certified operator. Texas requires that submetered properties allow access to the property by the public water system that provides it with water, register with the Texas Commission on Environmental Quality, and follow regulations for submetering. While submetering and billing for water usage may positively induce water conservation actions, States may still want to take other steps to ensure that property owners and others convert to water efficient fixtures and appliances. For example, Texas requires that apartment buildings have water-efficient plumbing fixtures and appliances as a condition of approval of a submetered billing system. Ratio Utility Billing Systems

(RUBS)and Hybrid Billing Systems

(HWH)Several commenters raised the issue of ratio utility billing systems

(RUBS)4 and other allocation billing systems. Some commenters suggested that EPA should include this type of billing in the revised policy because it would have no negative effect on water quality. Other commenters encouraged EPA to exclude RUBS, stating that RUBS may not result in water conservation, and may, in fact, reduce incentives to install submeters and charge on the basis of actual water usage. Water savings, if any, from RUBS and hot water hybrid billing systems

(HWH)are uncertain. At this time, EPA believes that RUBS or other allocation billing systems do not meet the definition of submetering, as used in this policy, and do not encourage water conservation. Therefore, a property using these billing systems is not addressed by this policy. Primacy Agencies will need to determine whether such properties are “selling” water within the meaning of SDWA section 1411. 4 A ratio utility billing system

(RUBS)or an allocation formula, divides a property's water bill among its residents based on a ratio of floor space, number of occupants, or some other quantitative measure. With RUBS, a price signal based on actual use is not sent to the tenant as with submetering, and the amount of water saved by these systems is unclear. A hot water hybrid

(HWH)billing system is a combination of submetering and allocation where hot water is submetered and a formula is applied to estimate the resident's total water use based on the volume of hot water metered. HWH systems provide more of a price signal than RUBS but less than that for submetering. This memorandum clarifies EPA's policy change and reconfirms our strong interest in advocating water conservation. Any previous EPA statements or policy memoranda on this issue are superceded by this memorandum. B. How Can I Get Copies of This Document and Other Related Information? 1. *Docket.* EPA has established an official public docket for this action under Docket ID No. OW-2003-0065. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Water Docket is

(202)566-2426. 2. *Electronic Access.* You may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr/.* An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at *http://www.epa.gov/edocket/* to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in section I.B.1. Once in the system, select “search,” then key in the appropriate docket identification number. Dated: December 17, 2003. G. Tracy Mehan III, Assistant Administrator, Office of Water. [FR Doc. 03-31588 Filed 12-22-03; 8:45 am]

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