Small communities embraced these principles, hoping they would limit federal drinking water rules from wasting local public health resources. Unfortunately, this has proven not to be the case across the board and I will briefly explain.
First, sound science and cost/benefit. The EPA has not taken the initiative to obtain adequate data, and sound science, including the use of the most recent accurance information, reasonable health affects studies, and compliance cost information when promulgating new rules. Frequently, good scientific studies are started too late and research data collection lag behind the timing for EPA to write and finalize new regulations. Consequently, old information and inadequate science is utilized as "best available science" creating weak or wholly inaccurate conclusions, placing a devastating financial impact on small water systems across this nation. Without anyone holding EPA accountable, only a strong emphasis on statutory deadlines is accomplished. Selective science and data is used instead of the good science and that cost/benefit analyst that was envisioned in the 1996 SDWA amendments. Here are some examples:
EPA's proposed ground water rule is incredibly broad in scope, and it based on one private utility funded occurrence study that the science community considered inadequate. Compliance cost have not been accurately calculated, and EPA disregarded rural water's request to study the possibility of designing a simple monitoring method that would have greatly simplified the rule.
EPA failed to use the best available science to set requirements under the LTlESWTR. Independent analysis of the Cryptosporidium occurrence data from the Information Collection Rule (ICR) survey indicated actual mean occurrence levels (considering recovery and viability) are likely to be an order of magnitude different (or less) than the figures used by EPA . Opposite the conclusion reached by EPA the ICR figures indicated that the cost far exceeded any benefit, "If the facts don't fit the theory, change the facts." Albert Einstein (1879-1955)
Disinfectant/Disinfection byproducts - The small systems have withdrawn from two prior Federal Advisory Committee Act (FACA) on D/DBP because there was not adequate science to justify a standard to a level that was affordable by small systems. We are now participating in a third FACA where the science is still inadequate and data is lacking for small systems.
Arsenic - There is very uncertain scientific evidence of the health effects of arsenic at levels proposed by EPA. Recently, EPA's own Science Advisory Board expressed concern that EPA proposal for a MCL of 5 parts per billion may be a precipitous action and that a less extreme proposal made until new studies are completed. Any decision by EPA to go below the current 50 parts per million standard will place an enormous cost on small systems without the public health benefits to justify such an action. The unintended consequences of regulating small communities in the absence of public health and cost information can be deleterious, causing much more harm than benefit to the customers. The problem with the current approach is best articulated by consumer expert Scott Rubin, who said: "Public health protection is notiree. Whether it's medical care, sewage treatment, clean drinking water, AIDS prevention, prescription medicine, food, heat, or shelter - it costs real money. And we don't have enough to go around. So, yes if we're setting public health policy, and that's what drinking water regulation is, we better make sure that we're getting our money's worth. Because if we're not buying meaningful public health protection, all we've done is take away money that people need to put food on the table, pay for a doctor, and keep the house warm.... My point is simple: Whenever we do anything to increase the price of water, we areforcing millions offamilies to makeyet another tradeoff which will directly affect their health. And, at the same time, we take a family that was barely squeaking by and we push them over the edge. "
Five major arsenic scientific studies are started at this time. The bulk of the health effects information necessary to appropriately set a rule will not be completed during the time of the regulatory rule making process.
To paraphrase Mark Twain, there is nothing as pesky as a good anecdote. What should be done in the City of Lidgerwood North Dakota, a very small city with just over 400 homes, an agriculture based economy with a high concentration of retired person, 70 miles south of Fargo. The city spent the better part of 1 million dollars to comply with the current arsenic standard which brought their levels from 56 parts per billion to 17. To comply with a 5ppb standard they would have to completely rebuild the treatment system for a cost over 1.5 million dollars.
Variances and Determining URTH (unreasonable risk to health): The SDWA contemplated that standards would be become affordable for small systems through the use of variances as described by Senator Baucus [Senate - November 29, 1995]
The bill provides special help to small systems that cannot afford to comply with the drinking water regulations and can benefit from technologies geared specifically to the needs of small systems. Here is how it would work. Any system serving 10,000 people orfewer may request a variance to install special small system technology identif ed by EPA. What this means is that if a small system cannot afford to comply with current regulations through conventional treatment, the system can comply with the act by installing affordable small system technology. Small systems that seek a variance will be protectedirom f nancial penalties while their application is being reviewed, and they would have 3 years to install the affordable technology. States approve the variance, but only if the technology provides adequate water quality and public health protection. So small systems are not forced to use big city treatment. But they must fully protect public health.
For a variety of reasons, EPA has not granted any variances. However, more concerning, is that EPA has not determined a criteria for who will be granted vanances. This failure to determine a simple (or any) policy on what cost/benefit principal will be used to grant variances or what URTH levels of contaminants will force small systems to comply with the same standards as large systems. This was the problem the SDWA of 1996 was attempting to remedy. We urge the committee to require EPA to publish any numerical levels (ranges) for all regulations that will not result in an unreasonable risk to health as contemplated in the SDWA and the methodology for determining URTH levels so small communities can plan for the future. Also, we would request that the Committee ensure that when any standards that are set using the criteria that is affordable for a large city, there is a corresponding level identified under the variance provisions based on either (1) public health or URTH or (2) the affordability of venous systems sizes identified in the small system technology provisions.
This information would be very beneficial for small communities to use in explaining -- to their constituents -- the need and public health benefits from compliance.
Occasionally, EPA is being held accountable tor moving forward without sound science - as in the case of the recent Chloroform lawsuit. However, this avenue of accountability is prohibitively costly for small communities who generally rely on the Congress to monitor EPA actions.
Second,-stakeholder input, we have been disappointed by the consistency in which the Agency dismisses or sets aside input from stakeholders, the scientific community and the public. Numerous local officials have participated, at great length, on panels and stakeholders groups, only to see EPA unilaterally make all policy decisions. Ultimately, stakeholders are having very little impact on the final rule. Work groups to provide background information to stakeholder committees and panels frequently are pressured to put on the table information that is incomplete, not peer reviewed and submitted at the last possible moment. Concerns about the compounding effect of the new rules on small communities and state primacy agencies ability to implement is largely ignored. Individually, here are some examples:
Arsenic and D/DBP Stakeholders and small communities petitioned the agency without success to delay rule making for 2 to 5 years until the new research gives meaningful answers to the question of health effects. In both cases, new epidemiology studies once evaluated will clearly characterize the dose-response relationship for non cancer end points. Currently, work groups and scientific panelists are pressured into creating conclusions that are weak and not supported by the data or health effects at the lower levels suggested by EPA.
Third, flexibility as a remedy to bureaucracy. The question has to be asked, is it possible for EPA to ever choose to be flexible in its approach. We can conclude based on empirical and theoretical observation that it is not possible for EPA to utilize flexibility. They can not be faulted for this however, because EPA is first and foremost a regulatory agency. They are only liable, politically and legally, when they don't fully enforce any and every regulatory measure to its fullest extent. Success for a regulatory agency is not measured in the vagaries of public health progress, but in application of finite regulations. Due to its mission, incentives, and culture EPA at every opportunity has chosen to use any discretion in the SDWA to increase the bureaucracy of its regulations.
The following are a few examples of our concerns:
Capacity Development: the Act provides for states to develop a program for assuring that there is sufficient technical, managerial and financial capacity for all new water systems and for water systems applying for State Revolving Fund assistance. This is the scope of the law with a very limited federal role. Rural water recommended that states (not EPA) to develop a state capacity development strategy for meeting four specific areas written into the statute. This would provide states the full flexibility to address small system capacity development. Contrary to this input, EPA has written formal guidelines for these capacity development strategies despite the fact that there is no statutory authority for EPA to write such a guidance. Our contention is that states have ultimate flexibility in this process and that every state is presently operating a form of capacity development strategy simply in its regulatory compliance and technical assistance programs. EPA says that the guidelines were supported by a majority of the stakeholders in the stakeholder meeting. However, this was not a stakeholder idea - it was a proposal initiated by EPA and pushed vigorously in the meeting.
Ground Water Rule: We felt that the rule should clearly demonstrate ground water contamination (physical, chemical, biological, or radiological substance or matter in the water) before requiring systems to disinfect or take any other steps. This common sense, "innocent until proven guilty" idea is the direction that the small communities feel EPA should adopt. However, EPA chose to develop a rule that regulates what a community must do to prevent contamination - a major change in the federal regulatory model. All EPA instruction on how to run a community (water system) to prevent contamination should be NON-regulatory (i.e., information, grants, training, education etc. to encourage towns to adopt the latest practices). EPA's ambiguous and opened ended rule functions more like a permit and leaves small communities without any discernable idea of when compliance is achieved. It can be interpreted differently from state to state and case to case.
Consumer Confidence Reports: We encouraged EPA to support a grassroots outreach program to assist communities with the first generation of CCRs because the enormous complexity of publishing the reports we thought, at least for the first report, EPA should use educational programs and flexibility to get systems to comply. Unfortunately this was not what agency chose. After making the rule as complex and detailed as possible EPA has initiated an enforcement policy that resulted in EPA letters saying: "you are in violation of the CCR rule . . . your system could be subject to Federal formal enforcement actions . . . [which] carry potential penalties of up to $257O00 per day." Keep in mind, that many of these towns don't have computers. have never heard of the Consumer Confidence Report.
Operator Certification Money: under section 123, EPA was to provide for the "reimbursement for the costs of training, including an appropriate per diem for unsalaried operators, and certification for persons operating systems serving 3,300 persons or fewer that are required to undergo training pursuant to this section... through grants to States." EPA was authorized to use up to $30,000,000 from the SRF to accomplish this objective. To date, these funds have not been allocated to state even through EPA is evaluating state certification programs.
Radon: EPA has proposed a radon maximum contaminant level 300 psi/l. Under the Act, a community can comply with the outdoor air equivalent if its state initiates a multimedia mitigation program. However, EPA appears to be requiring overly prescriptive mitigation program rather than an education/technical assistance approach. If states do not adopt workable multi-media programs than small communities will be required to do so, or comply with the 300 psi/l standard - an unreasonably stringent standard. Small systems should not be penalized by state inaction or EPA's overly complex MMP demands.
In closing Mr. Chairman, we must acknowledge and thank EPA for willingness to invite small systems in the stakeholder process, and the efforts on the part of the staff to include small communities in their rule making process. However, let me close by highlighting what is working in rural areas to help communities provide safe drinking water and comply with EPA's implementation of the rules.
Ask yourself, which communities in my state can't be trusted to take every et fort to provide safe drinking water. We continually ask for the list of the small communities that need to improve their drinking water and are not willing to take the steps to do it. No such list exists. Under the SDWA EPA was required to make such a list for recalcitrant systems. This has never been accomplished to our knowledge.
What is axiomatic in rural Amencan and overlooked in Washington is that small towns will take the necessary measures to protect their water. However they need common-sense assistance in a form they can understand (reasonable, practical and affordable). It takes someone siting down with them evening after evening, and working with them through the ENTIRE process. Giving them a copy of the federal register and phone number to call is no help at all.
This is why much of the SDWA is misdirected -- improving drinking water in small communities is more of a RESOURCE problem than a REGULATORY problem. Every community wants to provide safe water and meet all drinking water standards. After all, local water systems are operated by people whose families drink the water every day, who are locally elected by their community, and who know, ilrst-hand, how much their community can afford.
An anecdote from rural New York captures what is happening across the country: the Village of Cato is a typical rural community, consisting of 230 homes, a part-time Mayor, a village budget of three hundred thousand dollars and two full-time employees.
Last year, the EPA mandated that Cato publish a Consumer Confidence Report. This lengthy, confusing report is detailed in 26 pages of the Federal Register prose.
Over fifty thousand small communities across the country, just like Cato, had to comply with the rule. On behalf of those communities, we feel that there are two ways to implement this rule and one is better than the other.
First, is the rural water, grassroots way. Using funds provided by Congress, New York Rural Water Association helped over 500 communities publish their Consumer Confidence Report. For about half of the 500, they held regional one-day training sessions. The towns could bring their required data to our sessions and using our staff, our computers, a simplified template of EPA's requirements. and a little magic -- the towns could leave at the end of the day with their Report and the knowledge to do it on their own next year. The second half of the 500 communities needed more individual attention because their staff was not able to leave their j obs for a day, or they were too small to have staff. Keep in mind, that many of these towns don't have computers, have never heard of the Consumer Confidence Report, and have priorities of their own. This was the case in Cato, a circuit rider technician traveled to Cato and using his expertise and laptop, walked the village clerk and the water operator through the process, so that they could publish the report and comply with the rule. Across the country, rural water circuit riders assisted tens of thousands of small communities in a similar fashion. The result was a compliance rate for the rule higher than anyone had anticipated.
The second way to implement this rule is simply to send a letter to all the systems informing them of the rule and giving them an arbitrary compliance date. And following up that letter with another one from EPA saying: "you are in violation of the CCR rule . . . your system could be subject to Federal formal enforcement actions . . . [which] carry potential penalties of up to $25,000 per day."
This so-called Consumer Confidence Rule, is just one of many that EPA has promulgated -- some are over 100 federal register pages. Small towns depend on rural water assistance for help with EPA's complicated rules. What is working in small towns is providing common-sense assistance in a form they can understand and afford.
Last year, rural water technicians and Circuit Riders made over 50,000 ON-SITE contacts with small and rural water/wastewater systems. This is the only useful assistance many of these communities ever receive. Often the contacts result in important public health protection, substantial money savings to the community, avoidance of EPA fines, and enhanced long-term viability of the system.
I would like to again thank the committee for this hearing, ask for your continued support for additional technical resources to the grassroots level, your assistance to clarify the intent and meaning of key provision in the 96 Amendments, and your resistance to calls from special interest groups for more and more, ever stringent federal unfunded mandates on communities. Unfortunately things aren't that simple. The key to long-term improvement is local support, local education and available resources.