Good morning, Chairman Crapo, Chairman Smith, and members of the Subcommittee. I'm Gurnie Gunter, Director of the Kansas City, Missouri, Water Services Department. On behalf of the nation's largest municipal drinking water agencies, thank you for holding this hearing. We appreciate the priority status you have given oversight of the implementation of the Safe Drinking Water Act.
The Kansas City Water Services Department is responsible for water, wastewater, industrial waste and stormwater. We produce and deliver high-quality drinking water that surpasses federal and state standards; we collect and treat discharged wastewater and by-products from residents as well as businesses; and we operate and maintain a stormwater system to collect, transport and dispose of precipitation that falls in the area. The Kansas City Water Services Department delivers drinking water to about 650,000 people every day.
In addition, I am a board member of the Association of Metropolitan Water Agencies (AMWA), and my testimony today is on the Association's behalf. AMWA represents the largest municipal drinking water agencies in the United States. Together, AMWA member agencies serve clean, safe drinking water to over 110 million people.
History
Since late 1996, when the Amendments to the Safe Drinking Water Act were enacted, the Environmental Protection Agency has developed a number of new rules and programs. These include a source water assessment program, a rule requiring annual water quality reports for consumers, an updated program for water systems to inform consumers of violations of drinking water regulations, and a loan program for drinking water systems.
One of the most important fundamental changes brought about by these Amendments is Congress' directive to the Agency to rely on "the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices."
To meet the requirements of the 1996 Amendments, EPA is at work on a number of new rules. These include rules governing filter backwash, ground water disinfection, radon, other radionuclides and, most recently, arsenic. Also, EPA, water suppliers and environmental organizations are engaged in negotiations over the second phase of a rule to control microbes and the chemical byproducts of disinfection. And finally, EPA with the help of the National Drinking Water Advisory Council is establishing a process to determine other contaminants to regulate from the Contaminant Candidate List.
Support for EPA and the States
The last time AMWA testified on implementation of the Safe Drinking Water Act was before any major, new regulations had been issued under the 1996 revisions. The Act set out a demanding regulatory schedule, and AMWA commends EPA's Office of Ground Water and Drinking Water for its hard work. Also in previous testimony, AMWA strongly supported adequate funding for EPA's drinking water program as key to attaining the promise of the new Act. Today, we reiterate that support and call your attention to several areas of funding need.
AMWA's major concern, given the requirements of the Act for the use of sound science, is adequate drinking water research funding. Research is critical to ensuring that drinking water regulations address contaminants that actually occur in drinking water and that occur at levels of public health concern. This is important so that the limited resources at all levels of government - federal, state, and local - are directed at high-priority risks. It is also critical for the public, who must ultimately bear the increased costs of drinking water driven by new regulations, to receive true value for what they are being asked to spend. This year, EPA has requested nearly $49 million in drinking water research funding. AMWA believes that this is the minimum needed, and we urge you and your colleagues in the Senate to support this request.
AMWA also would like to express its support for our state regulators. The Safe Drinking Water Act authorizes federal funding for up to 75 percent of state implementation costs. At present, state program funding hovers at just over 35 percent, while the list of regulations that states must implement becomes larger and more demanding each year. Recognizing this deficiency and seeking to ensure the Safe Drinking Water Act is implemented as per Congress' intent, AWMA recommends that state primacy programs be funded at more appropriate levels.
Lastly, we encourage Congress to support the authorized level of $1 billion per year for the Drinking Water State Revolving Fund. This program assists water systems throughout the country in building facilities to meet the new requirements of the Act.
Areas Where Implementation Can Be Improved
We have already noted the remarkable amount of effort EPA has put into implementing the 1996 Amendments, but we would also like to express a number of concerns and to offer recommended actions. The Agency is already aware of these recommendations, as they appeared in AMWA's official comments on various proposed rules.
Source Water Protection. First and foremost, AMWA looks to EPA to better coordinate its various programs to prevent pollution of the nation's drinking water sources. It is more effective and more equitable to prevent pollution in the first place rather than rely on drinking water suppliers to install ever more complex and costly treatment to remove that pollution from the public's water. It is more effective for two reasons. First, no treatment technology removes all contaminants 100 percent of the time. Second, prevention at the source for many contaminants reduces threats to recreational use of water sources as well as the aquatic environment. It is more equitable, since preventing pollution at its source ensures that those responsible for it bear the costs of removal, rather than transferring those costs to drinking water system customers.
The case of MTBE, the gasoline additive approved by EPA under the Clean Air Act, provides an example of why coordination is needed. At the time MTBE was approved for use, EPA's scientists warned that, because of its characteristics, pollution of drinking water supplies was likely. The additive was nevertheless approved, and now we have extensive MTBE contamination of drinking water supplies. Consideration of drinking water concerns in the initial decision would have led to better results.
Indeed, the Clean Water Act and Safe Drinking Water Act offer many opportunities for coordination to protect drinking water sources.
The Use of Sound Science. The revised Safe Drinking Water Act stresses the use of sound science in developing and making regulatory decisions. As previously noted, AMWA has strongly supported increased research funding for drinking water to meet this purpose. Unfortunately, recent events have given all of us reason for concern. As you may know, EPA recently finalized a maximum contaminant level goal (MCLG) for chloroform at zero, despite noting in the final rule that the best available, peer-reviewed science indicated a non-zero value was more appropriate. EPA has now vacated the chloroform standard after a court ruling that the agency failed to use the best-available science.
More recently, EPA proposed a Filter Backwash Rule while acknowledging that they lack sufficient scientific information to know what risks might be involved, the effectiveness of current treatment, or the benefits that the public might receive from implementation of the rule. EPA's own Science Advisory Board has pointed out major deficiencies in the proposal.
There are a number of other similar examples. AMWA believes that such things are bound to happen with EPA struggling to meet mandated deadlines for issuing regulations. It would be unreasonable to expect perfection given an ever-changing base of scientific knowledge. While AMWA appreciates that the demanding schedule laid out in the Safe Drinking Water Act may lead to some oversights, we urge you to stress to EPA the importance of meeting the sound science provisions of the Act. We also recommend that Congress be open to changing statutory deadlines when there is reasonable expectation that additional, near-term information will better provide for the public's interests. Focusing on the mandated timelines in the Act to the point of ignoring its other provisions will not ultimately lead to the sensible, cost effective regulations the public deserves. The Filter Backwash Rule is a case in point. AMWA recommends that Congress consider an extension of the August 2000 deadline so that basic knowledge of risks, costs and benefits can be developed.
AMWA also recommends that the subcommittee consider requesting an independent review of how well EPA is incorporating science into regulatory decisions. An independent review by the National Academy of Sciences or the General Accounting Office could both serve as a template for EPA and assist the Agency in targeting its resources. It also would help ensure that future regulations have a solid footing based on science.
Health Risk Reduction and Cost Analyses. One of the most significant provisions of the Safe Drinking Water Act is the requirement for preparation of a Health Risk Reduction and Cost Analysis (HRRCA) document to be published for public comment at the same time a rule is proposed. AMWA believes that this document is a key public right-to-know provision of the Act. With a straightforward analysis of risks and costs, the public will know the answer to a very basic question, "What am I getting for my money?"
So far, the cost and risk analyses, with the exception of that for radon, have tended to be buried within a very long and complex Regulatory Impact Analysis. Moreover, the analyses are not published for comment in the Federal Register along with the proposed rule. Rather, HRRCAs must be obtained either from the rule docket or accessed via the Internet, and it is not clear that public comments are desired or whether they will even be reviewed and considered by the Agency.
A key component of HRRCAs required by the Act is an analysis of the "quantifiable and nonquantifiable health risk reduction benefits for which there is a factual basis in the rulemaking record to conclude that such benefits are likely to occur as the result of treatment to comply with each (maximum contaminant) level" (emphasis added). AMWA is concerned that several of the analyses to date have tended to rely, at least in part, on speculative ("what if") analyses.
Additionally, the analyses stray from normal cost-benefit practices. For example, EPA chooses to discount costs, but not benefits. Thus the Agency compares apples to oranges, which obfuscates whether the benefits of a rule justify the costs.
These are but a few of the problems that concern AMWA about how Health Risk Reduction and Cost Analyses are being conducted under the Safe Drinking Water Act. If these analyses are truly intended to inform decision-makers, then they must be very clear in addressing actual rather than speculative risk reduction benefits. And, if these analyses are truly intended to inform the public about the benefits they may receive for what they will pay, then the HRRCAs must be clear, straightforward, and easy to read.
AMWA recommends that the subcommittee consider requesting an independent review of how well EPA's cost-benefit analyses conform to standard practices and to the requirements of the Act. An independent review by the National Academy of Sciences or the General Accounting Office could both serve as a template for EPA and assist the Agency in targeting its resources. It would also help ensure that future cost-benefit analyses present information that is most useful to decision-makers and the general public.
Comments on Specific Proposed Regulations
Arsenic Rule. Just last week, EPA proposed regulating arsenic at 5 parts per billion (ppb), but will also be taking comment on 3, 10 and 20 ppb. EPA is required under SDWA to promulgate a final rule by January 2001. The 1996 Amendments also required that the National Academy of Sciences (NAS) conduct a review of EPA's arsenic risk assessment. The NAS report recommended that EPA revise the existing 50 ppb standard for arsenic downward as quickly as possible but did not recommend a specific level. The report also recommended that EPA conduct more studies of its arsenic toxicity analysis and risk characterization, conduct additional human studies, and identify markers of arsenic-induced cancers. The arsenic standard is a very complex issue, and the proposal rule will draw many valuable comments from stakeholders. Unfortunately, once the comment period closes EPA must finalize the standard only a few months later. We ask the subcommittee to consider extending this deadline by six months to give EPA more time to evaluate comments.
In addition, the Science Advisory Board's Drinking Water Committee was charged with reviewing the proposed rule for EPA. In a preliminary draft report prepared earlier this month, the committee suggested that EPA consider setting the arsenic standard higher than the proposed level of 5 ppb. The committee noted that the available science might support a standard in the range of 10 to 20 ppb.
Filter Backwash Rule. The Act also requires EPA to issue a rule governing filter backwash recycle practices by August 2000. The rule is intended to address the concentration of contaminants in the drinking water treatment process resulting from cleaning of water filter beds. AMWA is concerned about the lack of scientific data that is available to support this rule. In the preamble of the rule, EPA acknowledges that there is a paucity of data available regarding the recycle practices of filter backwash.
As noted earlier, AMWA requested that EPA repropose the rule to address several issues including the lack of available data. AMWA suggests that Congress extend the deadline for this rule to provide EPA with an additional year to evaluate the issue.
Radon Rule. EPA is required to finalize the Radon Rule by August 2000. Under the 1996 Amendments, Congress established the need for a mitigation program to reduce radon levels in indoor air. It is generally accepted that indoor air radon mitigation provides greater risk reduction than other methods of removal. Therefore, EPA developed a dual compliance regulatory approach: water systems may comply with an "alternative" maximum contaminant level (MCL) of 4000 picoCuries per liter (pCi/L) where the state, or the water system itself, operates an indoor air radon mitigation program. And where no mitigation program exists, water systems must either initiate one or comply with a "primary" MCL of 300 pCi/L. This approach is intended to attract water systems to participate in indoor air radon mitigation programs and thus achieve a higher risk reduction.
AMWA endorses the concept of addressing radon through multimedia programs that reduce indoor air risk. AMWA agrees that that indoor air radon mitigation provides greater risk reduction than does the treatment of drinking water. AMWA would like to see the Radon Rule refocused on encouraging states to adopt the multimedia program option and reducing the burden on water systems to develop their own indoor air program or be forced to comply with the maximum contaminant level.
Liability Reform for Suits Against Water Suppliers
AMWA also urges the subcommittee to focus its attention on the emerging threat to water suppliers of suits alleging the delivery of unsafe water even where the water surpasses the requirements of EPA rules.
Over the past two years, nearly a dozen tort suits some of them class-actions - have been filed against California water suppliers. Other suits could appear in other states at any time. The California suits allege damage from regulated and unregulated contaminants, and they threaten to undermine the ability of water systems to supply affordable water to consumers. The cost of litigation and the financial repercussions of cash awards could push the price of water beyond the reach of millions of families and affect other city services. Judgments could include cash awards or massively expensive treatment facilities to supplement existing ones.
The suits also threaten to render the Safe Drinking Water Act, particularly its mandate for science-based health standards, inconsequential when courts are handed the responsibility of setting drinking water standards. Further, liability against water suppliers makes these agencies the stewards of rivers, streams, lakes and aquifers that supply raw water to the treatment facilities. Meanwhile, neither the Clean Water Act nor the Superfund program provide any assurance to water suppliers that drinking water sources will be priorities for prevention and cleanup.
Infrastructure Challenges
A recent report by the Water Infrastructure Network (WIN), which is comprised of water suppliers, city officials, environmental organizations, and state agencies, shows that drinking water agencies spend roughly $13 billion per year on infrastructure to protect public health. But according to the report, that amount is only about half of what may be needed. The WIN report indicates that approximately $11 billion more per year is needed through 2019. EPA's recent "gap" analysis and a report by the American Water Works Association confirm this overwhelming shortfall.
Mr. Chairman, and members of the subcommittee, AMWA member agencies are exploring every avenue available to fund this anticipated future need. The vast majority of large municipal water systems currently fund 100 percent of their infrastructure as well as 100 percent of all federally mandated treatment requirements. We have embraced public-private partnerships and private investment where it makes sense from a local perspective. We have adopted new efficiencies and streamlined our process. In short, we attempt to run our agencies not only as public services, but as businesses, too.
AMWA is currently working with local governments, other water supply associations, state groups as well as the environmental community to assess the need and to develop appropriate funding solutions. AMWA is committed to evaluating all possibilities for future financing, and as we proceed, will keep the subcommittee apprised of any financing options that impact the long-standing partnerships we have had with the federal government.
Methyl Tertiary Butyl Ether (MTBE)
Finally, the issue of MTBE deserves consideration. AMWA wishes to thank Chairman Crapo, full committee Chairman Smith, Chairman Inhofe of the clean air subcommittee, and Senators Boxer and Feinstein for their responses to MTBE contamination.
AMWA urges swift action on the part of the committee and Congress to pass legislation that significantly reduces or eliminates the use of MTBE to prevent further water contamination, to assist water systems where supplies are contaminated, and to support development of treatment technologies to remove existing contamination.
Water systems in at least 31 states have detected MTBE in their wells or surface sources. As you know, the primary sources of contamination are leaking underground gasoline storage tanks, although there is concern that air deposition is another source. Since MTBE is very soluble in water and does not cling to soil well, it has a tendency to migrate much more quickly in water than other components of gasoline. MTBE renders drinking water unfit for human consumption due to strong taste and odor levels, even at levels as low as 2 parts per billion. Most consumers perceive drinking water with an unpleasant taste or odor as being unhealthy, and in some cases the water may very well be unsafe to drink. The bottom line is that consumers will not tolerate MTBE in their water.
Conclusion
Let me conclude by calling your attention to the main points included in this testimony:
· AMWA expresses its support for EPA's Office of Ground Water and Drinking and the state drinking water primacy agencies that implement the Safe Drinking Water Act. Recognition of their hard work is well-deserved, and we encourage Congress to support their efforts.
· Research is critical to ensure that drinking water regulations address contaminants that actually occur in drinking water and that occur at levels of public health concern.
· AMWA looks to EPA to better coordinate their various programs to prevent pollution in sources of drinking water.
· AMWA recommends that the subcommittee consider requesting an independent review of how well EPA is incorporating science into regulatory decisions.
· If Health Risk Reduction and Cost Analysis (HRRCA) are truly intended to inform decision-makers, then they must be very clear in addressing actual rather than speculative risk reduction benefits. And, if these analyses are truly intended to inform the public about the benefits they may receive for what they will pay, then the HRRCAs must be clear, straightforward, and easy to read.
· AMWA recommends that the subcommittee consider an independent review of how well EPA's cost-benefit analyses conform to standard practices. · AMWA urges the subcommittee to focus its attention on the emerging threat to water suppliers of suits alleging the delivery of unsafe water even where the water surpasses the requirements of EPA rules.
· AMWA makes note of the $11 billion-per-year shortfall in funding for municipal drinking water agencies anticipated over the next 20 years.
· AMWA urges swift action on the part of the committee and Congress to pass legislation that significantly reduces or eliminates the use of MTBE to prevent further water contamination, to assist water systems where supplies are contaminated, and to support development of treatment technologies to remove existing contamination.
Thank you for the opportunity to provide this testimony today. AMWA is committed to working with the Environment and Public Works Committee, Subcommittee on Wildlife, Fisheries, and Water, and EPA to ensure safe and affordable drinking water for the nation.