States have been protecting drinking water for more than 25 years, in some cases going back decades to the early U.S. Public Health Service standards. Since 1974, states have adopted and been implementing standards for 20 inorganic chemicals including lead and nitrate; 56 organic chemicals including pesticides, herbicides, and volatile chemicals; total trihalomethanes; total and fecal coliform; as well as implementing treatment requirements for surface water systems for turbidity, Giardia, and viruses. In addition, states have developed technical assistance programs, conducted sanitary surveys, and addressed operator certification, training, enforcement, emergency response, and review of water utilities plans and specifications.
The 1996 reauthorization of the Safe Drinking Water Act contained numerous new requirements to continue to ensure safe drinking water in this country. These new requirements include: consumer confidence reports; revisions to the lead/copper rule; Stage 1 D/DBP rule; interim enhanced surface water treatment rule; source water assessments and delineations for all public water systems; unregulated contaminant monitoring requirements; a revised public notification rule; a long-term enhanced surface water treatment rule; a filter backwash rule; a radon rule; a rule to protect ground water; an arsenic rule; a radionuclides rule; Stage 2 disinfection by-products rule; long-term 2 enhanced surface water treatment rule; water system capacity development programs; and operator certification program revisions. In addition, the U.S. Environmental Protection Agency (EPA) is required to obtain data to make determinations on whether to regulate an additional five more contaminants every six years (see page 6).
The states were willing players and partners in the discussions leading up to reauthorization in 1996 with the specific understanding that a significant new mandate such as this law, which encompasses sweeping new reforms and activities outside of the traditional drinking water program, must be accompanied by significant new resources and staff. While critical, resources alone are simply not enough. In addition, states need a reasonable regulatory schedule and the flexibility to allow states to shift staff and resources to new programs in a calculated and manageable fashion. Unfortunately, almost four years into implementation, the states are seeing disturbing trends emerge from EPA that are preventing the states from achieving full implementation of the law. In fact, these trends are resulting in a dilution of public health protection efforts and the forced prioritization of state program activities. These trends include:
· Inadequate Funding and Unwillingness to Address Cumulative Costs and Program Integration · Early Implementation · Changing State Roles and Expectations · Increasing Record Keeping and Reporting Burden
Each of these topics is discussed in more detail below.
Inadequate Funding and Unwillingness to Address Cumulative Costs and Program Integration
On average, states have historically provided 65 percent of the total funding for the drinking water program while EPA has provided only 35 percent, even though the SDWA authorizes EPA to fund up to 75 percent of the full costs of the program. Currently, about $271 million in state and Federal dollars is available to the state drinking water program. A Resource Needs Model, recently developed by the states and EPA, projects that state drinking water programs face a $100 million resource shortfall and a shortfall of almost 2,000 FTEs for FY-01. These shortfalls almost double through 2005 based on anticipated state workloads for the plethora of new regulations and programs being promulgated (see page 7).
To further compound the problem, EPA has not requested any increase in state PWSS program grants (current funding level is $90 million), that provides the reliable, sustainable base for state operations, since FY-96. In fact, the Agency has not even requested the full amount of $100 million as authorized in the SDWA. Although the Agency often looks to the drinking water SRF as a new source of funding for states, they do not fully recognize that states cannot hire permanent staff using a funding source that changes annually and the authority for which expires in 2003; that requires a 100 percent match of new state dollars; and that puts states in direct competition for the same pool of funding with water systems that have overwhelming infrastructure needs to improve public health protection.
The practical outcome of failing to provide any new PWSS funds is that state funding bases have been eroded over the years due to inflation and indirect and direct cost increases. In addition, the growing economy has made hiring and retaining staff more difficult as state salary levels become less competitive in the marketplace. The state drinking water programs have never been fully and adequately funded and are now challenged to meet enormous new mandates without the significant new money and staff needed to ensure full and effective implementation of the new programs as well as maintenance of the existing core programs.
The situation is further exacerbated by EPA's unwillingness or inability to fully address the cumulative costs to states for each of the very complex and comprehensive new programs and regulations being developed. There appears to be no acknowledgement that state program funding is finite and, in fact, already inadequate, nor a willingness to simplify and streamline regulations and provide adequate flexibility to reduce state implementation burdens. This attitude forces states to prioritize their activities based on available staff and resources and ensures that full implementation will likely not be realized. The states were committed in 1996 to take on the new mandates of the SDWA with the understanding that resources, staff, and needed tools would be available to ensure full and effective implementation of the new program as well as maintenance of the existing program. States are still committed to the improved public health protection opportunities envisioned in the law but are growing increasingly frustrated and angry that barriers are being erected to preclude their achievement of these goals.
Recommendations: 1) EPA should work with the states to confirm the current staff and resources needed to fully implement the program; 2) EPA should work with the states and Congress to close the documented resource gap and ensure that adequate funding will be available in future years based on the individual and cumulative costs of new regulations and programs; 3) EPA must also work with states to streamline and simplify new regulations and programs to reduce increased burden to the greatest extent possible; and 4) in the event that the gaps cannot be closed, EPA must be willing to engage the states in discussions on how to prioritize and manage the new mandates with existing or inadequate resources.
Early Implementation
The situation referenced above is further exacerbated by the Agency's continued insistence on early implementation of rule requirements prior to states adopting their own rules within the statutory framework of two years from the date of rule promulgation. This is especially troublesome with respect to the overwhelming number of rules EPA currently has out for review and the difficulty states and water systems will have complying with all of these new rules simultaneously. States need their rules in place in order to establish basic regulatory and enforcement authorities; to train operators and water system owners on Federal as well as state requirements; reprogram data management systems to accept new data reporting requirements, track compliance, and report to EPA; and ensure adequate laboratory capacity. Forty-nine of the 50 states have primacy and have the mechanisms in place to work with utilities within their state to achieve and maintain compliance. Inserting EPA Regions into the process, who are not on-site and do not have the resources, experience, and mechanisms in place to do much more than send letters and issue orders, greatly complicates the process and leaves the program in great disarray at the point when states must assume responsibility. This is a disservice to the states, the utilities, and the public across this country and brings into question the concept of primacy and state authority.
Recommendations: 1) The Agency's use of Memoranda of Understanding (MOU) prior to state rule adoption is not acceptable and the Agency must immediately cease all activities directed at forcing states to implement requirements before state rules are adopted; 2) EPA should forego all attempts to require EPA Regions to assume interim implementation activities.
Changing State Roles and Expectations
Of significant concern to ASDWA and the states is the expanding expectation of scale and scope being promoted by EPA that dramatically changes the state role from regulatory oversight to implementer of SDWA regulations. States have historically assured safe drinking water by conducting basic oversight and surveillance of water utilities and measuring utility compliance through performance measures such as compliance with public health standards of finished water. While some states have the capacity to be more involved in operations issues, for the most part, the daily operations and maintenance of utilities have primarily been left to the utility - using certified operators, licensed consulting engineers, and technical assistance from the states and other providers when needed. This has historically been the case because of resource and technical capacity limitations at the state level and liability issues associated with making process control decisions for the utilities that are regulated by the states.
This direction represents a significant change from the majority of current state practices and must involve a meaningful dialogue with state drinking water administrators, environmental commissioners, public health agency directors, Governors, Congress, and legislative bodies. The majority of state drinking water programs currently do not have the resources or sufficient staff with the technical expertise to work with individual utilities on a one-to-one basis to help make decisions on operating practices. If the Agency wants to make this change, then the states, including appropriate legislative bodies, must have buy-in to this process and there must be assurance that adequate numbers of trained state staff and resources will be made available to meet these new expectations.
At a time when most citizens want government out of daily decision making, EPA is establishing a structure to position government regulators to assume operational responsibility of our drinking water infrastructure. The Agency is not being honest with itself, Congress, and the public if it believes that state drinking water programs are currently in any position to fully implement these new provisions, even with a minimal oversight role, much less be able to assume a significant new role in water plant treatment, operations, and management decision-making.
Recommendations: 1) Congress needs to consider the fundamental role for government regulators to play; and 2) EPA needs to recognize that they are promoting a significant change in scale and scope of the program with expectations that states need to increase their day-to-day management role of water utilities. This shift needs to be more fully explored by the states and EPA, and additional funding made available to support this expansion of state responsibility and staff technical capacity if this change is accepted.
Increasing Record Keeping and Reporting Burden
Although ASDWA recognizes EPA's need to ensure, on the Federal level, that a rule is being implemented properly, EPA must recognize the increasing burden that is being placed on state data management programs with consideration for the number of upcoming rules. States, which should be EPA's partners in ensuring safe drinking water, are willing to submit necessary data elements to EPA to meet this need, but do not have the staff or resources to report extraneous data elements that are not necessary, and based on past experience, are typically not even used by the Agency. Therefore, prior to proposing a final rule, EPA must enter into a dialogue with state drinking water program staff to evaluate what data must be collected by the water systems, what data must be reported to states, and the minimum data elements that must be reported to the Agency, and determine the impact these requirements will have on states and water systems. The cumulative costs and impacts of these continual data requests must also be evaluated to ascertain if collectively they are providing states and EPA with meaningful data linking rules to real public health improvements.
Successes
In spite of the many roadblocks, hurdles, and challenges that state drinking water programs have faced over the last four years, and indeed 25 years, states have attained a significant amount of success in implementing the provisions of the SDWA. For example, States have made significant progress in working with utilities using surface water supplies to install new treatment facilities to assure a much higher level of public health protection. Sources of lead from drinking water have been significantly reduced; the data and information about water system quality and compliance is now more readily available to the public through Consumer Confidence Reports, state compliance reports, the Envirofacts database, and state web sites; the quality of water plant operators and water system capacity is being significantly improved; and an important source of funding for infrastructure improvements has been established in all states and loans are now being made to water systems to improve both their infrastructure and their ability to provide safe water to their consumers. States are also now beginning a very comprehensive and resource intensive effort to delineate and assess the quality of all source water being used for drinking water to ensure that local communities have the tools and information they need to protect their drinking water sources.
States intend to do all they can to meet their existing and new commitments, however, the road blocks and barriers being placed before and upon states are beginning to take their toll. More and more states are vocalizing their frustrations with the excessive, and in many cases unrealistic, expectations that are appearing in new regulations; the unrealistic expectations that EPA has for early implementation of the rules; and most critically, the lack of sufficient funding and staff to fully and effectively meet their own expectations as well as those of EPA, Congress, and the public.
The states are not interested in continuing to be the victims of GAO reports and IG investigations that find deficiencies in state programs when the staff, resources, and tools have not been made available for states to succeed. While quietly prioritizing and addressing implementation activities at the state and local level may meet the states' short-term needs, it is doubtful that ultimately it will meet the expectations of the public and Congress. States do not want to see the gains that have been made over the last 25 years eroded as focus and attention shifts from base, core public health activities to complex, new, and in many cases unimplementable regulations. The fundamental principles of the SDWA Amendments of 1996 are sound and, if correctly administered, have the potential to provide meaningful new public health protections. The states want the chance to succeed and they want the opportunity to help craft, as EPA's partners, the future direction of programs that will ensure the provision of safe drinking water in this country.
Upcoming Rulemaking Schedule
u 11/99 Proposed Radon Rule u 4/00 Proposed Long Term 1 Enhanced Surface Water Treatment Rule u 4/00 Proposed Filter Backwash Rule u 4/00 Radionuclides NODA u 4/00 Proposed Minor Changes to Stage 1 M/DBP Rule u 5/00 Proposed Ground Water Rule u 5/00 Proposed Secondary Standard for MTBE u 5/00 Final Public Notification Rule u 6/00 Proposed Arsenic Rule u 8/00 Final Radon Rule u 8/00 Final Filter Backwash Rule u 11/00 Final LT1 u 11/00 Final Ground Water Rule u 11/00 Final Radionuclides Rule u 12/00 Final Secondary Standard for MTBE u 1/01 Final Arsenic Rule