Good morning Mr. Chairman. I am David Paris, Water Supply Administrator of the Manchester Water Treatment Plant, Manchester, New Hampshire. The Manchester Water Treatment Plant provides drinking water to 128,000 people in Manchester and the surrounding communities of Derry, Londonderry, Grassmere, Goffstown, Bedford and Auburn NH. I serve on the American Water Works Association (AWWA) Water Utility Council and am here today on behalf of AWWA. AWWA appreciates the opportunity to present its view on the implementation of the Safe Drinking Water Act Amendments of 1996.
Founded in 1881, AWWA is the world's largest and oldest scientific and educational association representing drinking water supply professionals. The association's 56,000-plus members are comprised of administrators, utility operators, professional engineers, contractors, manufacturers, scientists, professors and health professionals. The association's membership includes over 4,2000 utilities that provide over 80 percent of the nation's drinking water. AWWA and its members are dedicated to providing safe, reliable drinking water to the American people.
AWWA utility members are regulated under the Safe Drinking Water Act (SDWA) and other statutes. AWWA believes few environmental activities are more important to the health of this country than assuring the protection of water supply sources, and the treatment, distribution and consumption of a safe and healthful adequate supply of drinking water. AWWA strongly believes that the successful implementation of the reforms of the SDWA Amendments of 1996 is essential to effective regulations that protect public health.
EPA DRINKING WATER PROGRAM
The Environmental Protection Agency (EPA) drinking water program took on greatly increased responsibilities in the 1996 SDWA amendments. These responsibilities included developing a new regulatory process requiring additional science and risk analysis for regulations, creating a contaminant occurrence data base and methodology to select contaminants for regulation, promulgating regulations for arsenic, radon and microbial and disinfectant/disinfection by-products (M/DBP), identifying new treatment technologies for small systems, administering the newly created drinking water state revolving fund, and developing regulations and guidelines for consumer confidence reports, operator certification programs, source water assessment and monitoring relief.
In satisfying these requirements, EPA has involved the public in the regulatory process to an extent not equaled by any other federal agency and stands as a model for federal rule making. EPA has involved private citizens, scientists, drinking water professionals, medical professionals, public health officials, economists, and environmental and consumer advocacy representatives, as well as other experts, to provide recommendations on how to carry out these new regulatory responsibilities. The EPA Office of Groundwater and Drinking Water is to be commended for taking this exemplary approach for public involvement that should result in better regulations that protect public health.
However, AWWA does have a major concern that EPA is not conducting essential research and developing new data to support drinking water regulations as expected in the 1996 SDWA Amendments. There is also a long-term concern that the authorizations for the new drinking water state revolving fund will not be adequate to address the needs identified to comply with SDWA regulations and upgrade drinking water infrastructure to ensure that high quality safe drinking water is provided to the American people. In this statement, AWWA will focus on the research and infrastructure funding needs as well as highlight AWWA's concerns with the arsenic, radon, radionuclides and M/DBP rulemaking. Although it is not an SDWA implementation issue, this statement also will address AWWA's concern about MTBE contamination of drinking water an issue that cuts across several statutes and EPA programs.
DRINKING WATER RESEARCH
The use of best-available, peer-reviewed good science as the foundation of the new drinking water standard-setting process under the SDWA amendments of 1996 will require extensive drinking water research - particularly health effects research. Unfortunately, there has been a cycle in which critical drinking water research lags behind the regulatory process. We must break that cycle. This can be done through improved funding and planning.
The nation needs an integrated, comprehensive drinking water research program. EPA must develop research schedules that meet regulatory needs along with a research tracking system so that the researchers and their EPA project officers can be held accountable and Congress must appropriate the funds required to carry out timely research. Only with timely appropriations and Congressional oversight can EPA, the drinking water community and consumers work together to ensure that sound science yields the most appropriate regulations and practices possible for the provision of safe drinking water for all the people in America.
DRINKING WATER RESEARCH FUNDING
Funding for drinking water research is a critical issue. The 1996 SDWA Amendments require EPA to develop comprehensive research plans for Microbial/Disinfection By-Products (M/DBP) and arsenic as well as other contaminants. An estimated total of over $100 million is needed for the combined arsenic and M/DBP regulatory research plans alone and this figure does not include other needed drinking water research on radon, a whole array of other radionuclides, groundwater contamination, children's health issues, endocrine disruptors, and other new contaminants on EPA's Contaminant Candidates List (CCL) that will require additional occurrence, treatment, and health effects research.
In the past year, AWWA and other stakeholders worked closely with EPA to resolve any future research resource gaps beginning with the FY 2001 budget process. As a result of this cooperative approach to determining drinking water research needs, AWWA believes that the $48,872,500 requested in the President's Budget for FY 2001 is the absolute minimum necessary for FY 2001, (and may not be enough) to assure that the essential research will be conducted on which to base drinking water regulations as required by the Safe Drinking Water Act (SDWA).
Over the past several years, public water suppliers have worked together with EPA and the Congress to secure increased research funding for the nation's drinking water program. We believe that, through this cooperative effort, essential increases in research dollars have been obtained for drinking water over the past few years after several years of steady decline.
In August 2001, EPA will select at least five contaminants from the Contaminant Candidate List (CCL) and determine whether or not to regulate them. This process will be repeated every five years. To determine whether to regulate a contaminant and establish a maximum contaminate level (MCL) or another regulatory approach, EPA will need good health effects research. Recognizing the serious burden this regulatory mandate presents, the drinking water community has offered its time, resources and expertise to work with EPA to develop a research plan for the contaminants on the CCL.
DRINKING WATER RESEARCH PLANNING
Developing a comprehensive drinking water research plan is necessary. EPA finalized the first Contaminant Candidate List (CCL) in February, 1998, which contained 61 contaminants that could be considered for future regulations. Of these 61 contaminants, only 12 currently have adequate information to move forward in the standard-setting process. The balance of the contaminants (including such important contaminants as MTBE, triazines, and acetochlor) need additional health effects, treatment, analytical methods, and occurrence research. A comprehensive research plan for this large number of contaminants needs to be completed, peer-reviewed, adequately resourced, and then implemented. EPA has been working over the past couple of years to develop such a comprehensive plan. The total funding need for a comprehensive research plan is unknown at this time, but the amount is expected to be substantial.
The vast majority of EPA's ongoing drinking water research is related to the M/DBP Cluster and arsenic. EPA has established innovative research partnerships with the AWWA Research Foundation (AWWARF) and the Association of California Water Agencies (ACWA) that has partially filled the research gap on these two issues. However, very little research is ongoing on other priority regulations such as radon, other radionuclides, the filter backwash rule, etc. While the research on the M/DBP Cluster and arsenic is important, these other priority contaminants and future contaminants for regulatory action cannot be neglected.
Long-range planning is needed to break the cycle of drinking water research lagging behind the regulatory needs. Assume that EPA will finish their overall contaminant research plan and have it peer reviewed by mid-2001. Then, EPA issues a research request, receives proposals, selects specific proposals, and contracts for the research. This process will take at least six months, so the research would not start until early 2002. Most research takes a minimum of two to three years to complete, with an added year for complete peer review, so the results would be available in 2006. The timing of this future research (which is based on a lot of optimistic assumptions)) bumps up against the statutory deadline for the second round of regulatory determinations in 2001. Since EPA has put a strong emphasis on meeting statutory deadlines, the result may be the promulgation of regulations without the good science that was envisioned in the 1996 SDWA Amendments. Long-range research planning efforts must be accelerated by EPA to breaking cycle of research availability only after regulatory decisions have been made. ADDITIONAL DRINKING WATER RESEARCH IMPROVEMENTS
Recently the National Research Council (NRC), an arm of the National Academy Sciences (NAS) recommended that the position of deputy administrator for science and technology be created within EPA to oversee research throughout the agency. AWWA has long contended that coordination of research in EPA needed to be improved. While EPA recently has begun to improve the quantity and quality of its science, a higher level of coordination is needed to ensure its effectiveness. The current position of assistant administrator for research and development does not have agency wide responsibility or authority to oversee all of the science needed for policy-making. AWWA recommends that the Congress give serious consideration to the NRC proposal.
AWWA also suggests that EPA work closely with other federal agencies such as the Centers for Disease Control and Prevention (CDC), the National Institutes of Health, the US Department of Agriculture, the US Army Corps of Engineers, etc., to leverage resources so that the research efforts can be maximized. The Congress and EPA need to continue to look for innovative research partnerships to get the job done, similar to what was developed for the M/DBP cluster and arsenic. Congress should also consider funding these partnerships for drinking water research independent of other environmental research to give the drinking water program, a public health program that affects every person in the United States, the priority it deserves. DRINKING WATER REGULATIONS
While timely, best available, peer-reviewed good science is essential to intelligent regulatory decision-making, how that science and other data are actually used in decision-making is critical. AWWA is concerned about the scientific basis for some regulatory decisions. Incomplete or old science, although it is the "best-available" may still be inadequate science. Making regulatory decisions on inadequate science is not in accordance with the intent of the 1996 SDWA Amendments. The use of cost data and benefit assumptions appears to be arbitrary and capricious in some cases. Most disturbing of all is a perception that researchers may have been pressured into conclusions. The following drinking water regulations, either proposed or under development, illustrate AWWA's concerns.
ARSENIC
The 1996 SDWA Amendments required EPA to propose a revised arsenic regulation by January, 2000, and promulgate a final regulation by January, 2001. The National Academy of Sciences' (NAS) conducted a comprehensive review of the arsenic risk assessment that was released last year. The 1996 SDWA Amendments also required EPA to develop a comprehensive research plan on low-levels or naturally occurring arsenic. The objective of the plan was to develop an extensive arsenic research program. The plan has been completed but has not yet been fully executed and the vast majority of the research results will not be ready in time to impact the regulation. The key issue for the arsenic regulation is that the health effects data and the results of the health effects research needed to be available by mid-1999 to meet the deadlines in the SDWA. Only five major arsenic health effects research projects were started by that time. Since EPA had not made a significant start on the bulk of the necessary health effects (which will take several years to complete), it is likely that very little of the necessary research will be completed in time to be used in developing a revised arsenic regulation.
The lack of realistic prioritization of the arsenic research, from the AWWA viewpoint, has minimized the potential for the ongoing research to substantially reduce the uncertainty in the arsenic risk assessment. The ongoing research projects may (or may not) be the specific projects that could have the most impact in reducing that uncertainty, but nobody knows for sure at this point. AWWA is concerned that some of the ongoing research may simply lead to the need for more research rather than give answers that are meaningful for the regulatory process.
AWWA agrees with the NAS that the current arsenic regulation needs to be revised in accordance with the provisions of the 1996 SDWA Amendments. One of the conclusions of the NAS study is that "Additional epidemiological evaluations are needed to characterize the dose-response relationship for arsenic-associated cancer and non-cancer end points, especially at low doses. Such studies are of critical importance for improving the scientific validity of risk assessment." Some of the ongoing research being conducted by EPA (in accordance with the Arsenic Research Plan) and work being conducted by the arsenic research partnership between the AWWA Research Foundation (AWWARF), the Association of California Water Agencies (ACWA), and EPA includes epidemiological studies that will address some of the NAS questions. The research will provide some of the answers for the risk assessment; however, none of these epidemiological studies will be completed until AFTER the arsenic regulation is finalized.
AWWA has grave concerns regarding the scientific basis upon which the forthcoming arsenic regulation will be promulgated. Recently, Inside EPA published a memo from Mr. Andrew Hanson, Office of Congressional Intergovernmental Affairs (OCIR) to Irene Suzukida-Dooley, Office of Ground Water and Drinking Water (OGWDW). In this memo, OCIR indicates that it will not support a proposal of 5 parts per billion (ppb) of arsenic in drinking water. The memo goes on to say that National Research Council (NRC) panelists who participated in the "Arsenic in Drinking Water Study" released this spring "cited numerous specific concerns about methodologies employed in the risk analysis". Through the Freedom of Information Act process, AWWA has obtained notes regarding the discussions with the NRC panelists.
Frankly, the comments of the panelists are quite disturbing. Of the four panelists interviewed, there are three messages that resound. First, these comments indicate that the panel was pressured into creating conclusions that were not "weak", "wimpy", or "less than conclusive". While AWWA highly respects and supports the work of the NRC, this indication of collusion could draw into question (or at least the perception of a question) the very scientific basis upon which EPA is basing this regulation. Although the Executive Summary of NRC report states that "data that can help to determine the shape of the dose-response curve in the range of extrapolation are inconclusive and do not meet EPA's 1996 stated criteria for departure form the default assumption of linearity", the second connotation drawn from the panelist's quotes is that there appeared to be agreement among the panel that the dose-response curve is clearly non-linear. The report goes on to state "Of the several modes of action that are considered most plausible, a sublinear dose-response curve in the low-dose range is predicted, although linearity can not be ruled out." Here the panel considers a sublinear dose-response curve "most plausible". It is AWWA's opinion that this whole issue of dose-response extrapolation adds enormous uncertainty to the standard setting process and makes high cost standards for arsenic in the single digits very unrealistic. What specific research does EPA have planned to address the issue of non-linearity in the dose-response curve? Will this data be available for the six-year review cycle? The quotes from the panelists further indicate a third most disturbing point; a proposal below 10 ppb of arsenic in drinking water is "not supportable" and "not realistic". This final revelation from some of the panelists begs the question "If the NRC panelists do not feel that an MCL below 10 ppb is supportable, on what basis will EPA base a proposed MCL of 5ppb?"
Earlier this month, in a preliminary draft report, the Drinking Water Committee of EPA's Science Advisory Board (SAB) said that the available scientific evidence on arsenic's health effects could justify a standard of 10 ppb or even 20 ppb under the 1996 SDWA Amendments. This again calls into question the basis for EPA's proposed MCL of 5 ppb. The SAB Drinking Water Committee noted that there are uncertainties associated with the use of old Taiwanese data to estimate the risks from arsenic and concluded that EPA may have misinterpreted the data and overestimated lung cancer risks. According to the draft SAB report, results from the Taiwanese and other studies should not be rigidly extrapolated to the U.S. population. Poor nutritional status in Taiwan, Chile, and India may have influenced the health effects. A 1999 study conducted in Utah found no evidence of either bladder or lung cancer at arsenic levels of 200 ppb, the report said. In addition, the report noted that studies conducted in animals have shown that deficiencies in selenium substantially increases the toxicity of arsenic. Urinary concentrations of selenium in the area of Taiwan were found to be between three and four micrograms per liter, as opposed to 60 micrograms per liter in the United States. The report also noted that other nutritional factors were not taken into account by EPA, nor were rates of infectious hepatitis, which have been associated with cancer.
Clearly the scientific basis upon which to base such a number is questionable at best. In light of the SAB draft report and the quotes from the NRC panelists, the scientific data is not necessarily as strong as previously thought. EPA recognized in the recent abstract of the Utah cohort mortality study that the relationship between health effects and exposure to drinking water arsenic is not well established in the U.S. populations. EPA concluded that further evaluation of potential health effects in low-exposure U.S. populations is warranted. By its own admission, the Agency does not clearly understand the health effects issues as they relate to U.S. populations. Since the science on which to base an MCL of 5 ppb is questionable, how can EPA justify the high cost of the MCL?
EPA invoked the cost benefit provisions of the SDWA to support the choice of an MCL of 5 ppb for arsenic. However, EPA did not employ a marginal analysis to justify this decision. EPA has not therefore performed a proper cost benefit analysis and has not complied with the SDWA. SDWA compliance inherently exhibits diminishing returns. As lower and lower treatment targets are considered, costs increase at an increasing rate while the increment of exposure reduction achieved diminishes with each additional increment of stringency. This relationship implies that there is a balance point where the marginal benefit obtained equals the marginal cost and net benefits are maximized. This is the right way to use cost benefit analysis to justify a decision. However, this is not what EPA did to justify the proposed arsenic MCL.
EPA discussed an aggregate comparison of total costs and benefits to justify its choice of an MCL. In this procedure, the more favorable relationship between benefits and costs from the first increments of additional stringency (i.e., moving from 50 ppb to 20 ppb) are averaged in with the less favorable data relating to the last increments (i.e., moving from 10 ppb to 5 ppb). EPA based its decision on a comparison of these aggregates (and other risk criteria of its own making). The SDWA specifically states that the incremental costs and benefits associated with each alternative MCL must be considered. EPA presents such values but provides no discussion of them and does not incorporate them into its justification, relying instead on aggregate cost benefit comparison and analysis of uncertainties on the benefits side. The aggregate comparison performed by EPA embodies a decision rule that is structured such that it will always over-shoot the economically optimal level of stringency that would be prescribed by marginal analysis. EPA's decision rule is arbitrary and has no standing in economic analysis. It is not a cost benefit analysis and does not meet the clear or implied intent of the SDWA.
AWWA also has concerns about the national cost estimate used by EPA. The AWWA Research Foundation did an independent analysis of the costs of implementing the arsenic drinking water regulation at varying MCLs. The differences in estimates were significant, using the same methodology. The differences are:
5 ppb 10 ppb 20 ppb EPA Estimate $378 million/year $164 million/year $62 million/year AWWA Estimate $1.46 billion/year $605 million/year $55 million/year
These widely differing cost estimates need to be reconciled before the final rule is promulgated.
The arsenic drinking water regulation was proposed last week on June 22nd, and comments are due to EPA on September 20th. However, because the rule has been delayed and EPA has a statutory deadline to promulgate the final regulation in January 2001, AWWA is deeply concerned that EPA will not have sufficient time to evaluate comments and that an MCL based on inadequate science and cost and benefit data may be promulgated. AWWA strongly urges EPA to carefully reconsider the body of scientific evidence available and recommends that the proposed arsenic standard be no less than 10 ppb which is the World Health Organization (WHO) standard.
MICROBIAL, DISINFECTANT & DISINFECTION BY-PRODUCTS CLUSTER
This "cluster" of regulations is the most significant and potentially the most costly of all drinking water regulations required in the 1996 SDWA amendments. It includes Disinfectant/Disinfection By-Product Rules, Enhanced Surface Water Treatment Rules, a Filter Backwash Rule and the Groundwater Rule. The regulations in this "cluster" require substantial research, most of which will not be completed by the time indicated in the SDWA.
Research on microbial contaminants and disinfectants and disinfection by-products is a critical need. Each day there are roughly 50,000 deaths in the world attributed to microbial contamination of drinking water. Much of this threat has essentially been eliminated in the United States through disinfection of drinking water. However, it is now known that disinfection of drinking water can produce chemical by-products, some of which are suspected human carcinogens or may cause other toxic effects. Controlling risks from these by-products must be carefully balanced against microbial risks to ensure that when reducing disinfection levels or changing treatment to lower by-product risk, significant microbial risks are not created.
Research on disinfectants and disinfection by-products, as endorsed by the National Academy of Sciences and EPA's Science Advisory Board, is essential. The cost to the nation of microbial and disinfection by-products regulations under the SDWA will certainly be in the billions and could be as high as $60 billion or more depending on the final rule. An appropriate investment in health effects research will ensure that costs of regulation will be commensurate with the health benefit and not driven to extremes because of the lack of data.
Cryptosporidium is a microbial pathogen of major concern to drinking water supplies. The Centers for Disease Control, in correspondence with EPA, has pointed out that extensive research on the health implications of this pathogen and dramatic improvements in analytical methods for its detection are necessary before it is possible to evaluate the public health implications of its occurrence at low levels and determine the appropriate regulatory response. Adequate funding for research on Cryptosporidium , as well as other emerging pathogens, is essential to protect the health of millions of Americans.
The final Filter Backwash Rule, which will prevent unsafe concentrations of contaminants in the drinking water treatment process resulting from cleaning water filter beds, is scheduled to be promulgated by August 2000. However, this rule has become a major concern since there is not much data on which to base a regulation and the potential for significant compliance costs.
For the Filter Backwash Rule, EPA assembled a collection of studies that appears to reflect 1,907 individual surface water samples. As presented, this assemblage cannot be directly related to drinking water sources. Few of these individual studies obtained positive samples and large data sets appear to be prone to lower observed occurrence than smaller data sets. Twenty-six of the studies either reported ranges of observation including zero or neglected to provide a range of observations.
Most disturbing is that the assembled studies did not include the most recent and comprehensive survey of drinking water treatment plant influent water concentrations available from the Information Collection Rule (ICR) data collected over 18 months in 1997 and 1998. During that data collection process, public water systems serving greater than 100,000 persons collected monthly protozoan samples using an existing EPA approved method. The resulting data has been available to EPA since December 1999. The raw ICR data suggests that less than 7 percent of large public water systems use source waters that contain Cryptosporidium oocysts. Preliminary estimates from statistical models of this data indicate that the median oocyst concentration to be approximately 0.03 oocysts per liter rather than the values of 4.70 and 10.64 oocysts per liter cited by EPA in their proposal for the Filter Backwash Rule. After all the cost and time involved to collect this information under the requirements of the ICR, why is EPA discounting this most recent information?
EPA correctly points out the difficulties in performing Cryptosporidium analysis for filter backwash samples. Where recovery data are provided in the literature, the rates have been typically low. It is important to point out that the volumes analyzed have been very small due to high turbidity in the samples. It is not uncommon for spent filter backwash samples to have equivalent volumes analyzed of much less than one liter. Therefore, the focus by EPA on high outlier levels of oocysts reported is unjustified. EPA is aware of the uncertainties of individual protozoan measurements and citing these outlier values violates the sound statistics that have been developed by EPA and others over the past several years to better understand protozoan data. The 1996 SDWA Amendments call for the use of "best available" science. EPA does not appear to be following this provision of the law in the Filter Backwash Rule.
RADON
EPA is under a statutory deadline to finalize the radon drinking water regulation by August 6, 2000. AWWA has significant concerns about whether regulating radon in drinking water is cost effective particularly the primary Maximum Contaminant Level (MCL) of 300 picacuries per liter. For the radon drinking water regulation to provide effective public health benefits, it is essential that states adopt a multi-media mitigation (MMM) program to abate radon in indoor air which is the primary threat to public health.
However, AWWA believes that there are some flaws in establishing the primary MCL. AWWA has repeatedly indicated to EPA our numerous concerns regarding the Health Risk Reduction and Cost Analysis (HRRCA) for radon. These concerns cover a wide range of issues such as life years saved estimates, latency times, discounting rates, cumulative costs of regulation, affordability, entry points to the distribution system, and treatment costs. Many of these factors can have a dramatic impact on the benefit-cost ratio. Depending on the assumptions, the cost-benefit ratio can vary from a high of 0.95, indicating a reasonable comparison of benefits to costs, to a low of 0.04, where the costs are clearly extreme compared to the benefits received.
The first and foremost issue is a policy concern in determination of when "benefits justify costs." Some Federal Agencies use a cost benefit ratio to justify an expenditure. The US Army Corps of Engineers, for example, uses a ratio of 1:2. Studies on the lead service line replacement portion of the Lead and Copper Rule show a dismal cost benefit ratio of 100:1. Prudent public policy dictates that federally mandated expenditures at the state and local level should have a ratio where benefits exceed costs.
Costs from the radon HRRCA show that it will have a devastating impact on small water systems, which are the majority of systems expected to take action as a result of the regulation. Simply looking at national costs, in aggregate, allows economies of scale for larger systems to mask the regulations affect on smaller systems. When one looks at the very very small systems category cost benefit ratios range from a disappointing 20:1 to 50:1. To make matters worse, benefits accrue locally in tiny increments. Again in the very very small system size, costs are estimated at $10,000 per year, with a corresponding 10,000-14,000 years between statistical cancer cases avoided. Clearly the primary MCL should take into account the regulatory impacts on small systems, which it does not.
The accounting of benefits in the HRRCA is inconsistent with common risk assessment and risk management principles. For example, risk assessment and management in the EPA's drinking water program typically assumes a 70-year exposure period. This implies that 1/70 of the benefits will appear in the first year after implementation, 2/70 in the second year and so on. The HRRCA grossly over estimates benefits by assuming that the full benefit of the regulation is realized in the first year, and succeeding years. The HRRCA should be revised to reflect a phase in, or latency period, for benefits.
Also of concern is the failure of the HRRCA to account properly for time in the benefits estimate. The HRRCA discounts costs of a 7% annual rate, but does not discount benefits at all. This inflates the benefits estimate. Costs and benefits should be discounted at the same rate and the HRRCA should reflect this. AWWA estimates that the failure to phase in benefits and the failure to consider the timing of benefits shifts the cost benefit ratio from approximately 1:1 an to unfavorable 5:1, or even 9:1.
With the cost benefit ratios for the primary MCL shifting negatively, the multi-media mitigation program that Congress wrote into the 1996 SDWA Amendments becomes critical to providing a public health benefit. The EPA's 1994 Report to Congress placed the dollar cost of saving a life through a radon indoor air program at $700,000. This is almost ten times lower than the cost to save a statistical life through drinking water efforts on radon. AWWA supports the concept of the MMM program; however, AWWA has a significant concern that the MMM program in the statute and in the proposed radon regulation will not work as intended. There is little incentive in the SDWA for a State to adopt a MMM program simply to enforce the alternative MCL for radon rather than the primary MCL. In States that do not adopt a MMM program for radon, the costs to drinking water consumers will be exorbitant with very little public health benefit.
AWWA urges Congress to provide incentives in the Indoor Air Radon Abatement Act for States to adopt a MMM program that would meet the requirements for a State to enforce the alternate MCL for radon. This would put the MMM program and requirement in the air program where it more rightfully belongs and provide resources for the States to successfully implement the MMM program. If all States have a MMM program, the alternate MCL will provide more public health benefit and at a more reasonable cost than the primary MCL. AWWA also believes that there should be a single standard for radon in drinking water based on the MMM since the major health threat is from air. AWWA recommends that the Congress address this flaw in the SDWA as soon as possible before the American people are faced with the exorbitant cost that would result from enforcing the primary MCL in the proposed regulation.
RADIONUCLIDES
AWWA, through its volunteers and contractors, has invested significant time and resources on the benefit-cost analysis (BCA) in the Notice of Data Availability (NODA) that was published on April 21st for the Radionulclides Rule. The BCA components, and the process to fit them together, used in the NODA are critical, as this is one of the first BCA conducted under the new provisions of the 1996 Safe Drinking Water Act Amendments.
At this time, AWWA does not believe that the BCA presented in the radionuclides NODA meets the requirements of Section 1412(b)(4)(C) of the SDWA. EPA simply put the costs in one column, and the benefits in another column to meet this requirement. AWWA believes that a much more robust BCA must be included in the final regulation, and the lack of a more robust BCA in the final regulation would be considered arbitrary and capricious and contrary to the clear SDWA language
Considerable mention is made in the NODA of the EPA "policy" that MCLs must be established such that individual lifetime cancer risks do not exceed a threshold of 10-4. This notion that a maximum "allowable risk" (of 10-4) is the ultimate binding constraint on EPA rulemaking regardless of what the costs of the rule are, or how the benefits compare to those costs is quite troubling.
Clearly, there is no statutory mandate or authority to have a self-defined and self-imposed Agency policy on an "acceptable risk" floor. The 1996 SDWA Amendments do not impose or envision such a constraint. Consider a case in which the cost of a potential MCL was not justified by its benefits, but where the estimated cancer risk at a less stringent alternative exceeded the 10-4 level. The NODA language appears to clearly state that the Administrator would be obliged to set the MCL at the unjustified level (to maintain a 10-4 risk ceiling) rather than follow the letter and intent of the statute and set a less stringent MCL that was indeed justified on a reasonable benefit-cost basis. EPA should explicitly clarify whether this indeed is its intent and interpretation of the statute. If this is the case, then the "acceptable risk" floor of 10-4 is more of a rule than a policy, and EPA should publish an "acceptable risk" proposal that allows for public comment on such a critical issue.
DRINKING WATER INFRASTRUCTURE
According to the EPA Drinking Water Infrastructure Needs Survey released on January 31, 1997, $12.1 billion is needed in the immediate future to protect drinking water supplies. Of this amount, $10.2 billion, or 84 percent, is needed to protect water from microbial contaminants which can produce immediate illness or death. According to the needs survey, between 1995 and 2015, a total of $138.4 billion will be needed to upgrade the infrastructure of the nation's water utilities to meet requirements of the SDWA. It is also important to note that this figure does not include other drinking water infrastructure needs, such as replacing aging transmission and distribution facilities, which are not eligible for funding from the Drinking Water State Revolving Fund (DWSRF).
In an independent analysis, AWWA estimates that the total drinking water needs, taking full account of infrastructure replacement needs, is on the order of $385 billion over a twenty year period. The Water Infrastructure Network (WIN), of which AWWA is a member, recently released a report that estimates that the total drinking water and waste water infrastructure needs over a twenty year period approaches one trillion dollars. AWWA will soon release a report that will outline the size and shape of the investment need for drinking water in the United States. The findings illustrate that the size of the need will vary from place to place, reflecting the age, character and history of the community. The AWWA report raises the questions that need to be addressed to determine how best to meet the Nation's drinking water infrastructure needs.
The report concludes that, in the aggregate, after accounting for the potential of best practices in asset management, research and new technologies, efforts to increase ratepayer awareness and support, and possible alternative compliance scenarios, in some utilities there still remains a "gap" between what is needed for infrastructure re-investment and what is practical to fund through water rates. This gap can be expected to grow over the next few decades as a reflection an infrastructure building boom years ago that will begin to reach the end of its useful life.
AWWA remains committed to the principle of full cost recovery through water rates as the essential under-pinning of local sustainability of water infrastructure. Longer term, the objective should be to flatten the replacement function and restore utilities to full cost recovery and financial sustainability.
AWWA does not expect that federal funds will be available for 100 percent of the infrastructure needs of the nation's water utilities. The DWSRF is a loan program with a state match. Ultimately, the rate-paying public will have to pay for the nation's drinking water infrastructure, regardless of whether financing comes from the DWSRF or other sources. However, AWWA does believe that DWSRF funding is a major issue for congressional oversight to ensure that federal funding is adequately available to meet the intended purposes of the SDWA. Over the next twenty years, it is clear that SDWA compliance requirements and infrastructure needs will compete for limited capital resources. Infrastructure needs and SDWA compliance can no longer be approached as separate issues. Oversight should take place in the context of the total compliance and infrastructure need and how the needs should be apportioned among the various financing mechanisms and sources.
There are a number of enhancements to the DWSRF that should be considered to increase its effectiveness, such as:
· increasing the authorized DWSRF funding levels to fund SDWA compliance projects and other needs.
· expanding the DWSRF to encompass system rehabilitation and replacement in addition to SDWA compliance as eleigible expenditures, allowing communities to take a more comprhensive approach to providing safe drinking water. As drinking water regulations become more stringent, upgrading the distribution system, like protecting drinking water sources, becomes a larger factor in maintaining the regulated safety level until the water reaches the consumer.
· Examining strategies for streamlining current operations of DWSRFs and strategies to encourage more innovative use of DWSRFs at the state level.
AWWA will provide a copy of the forthcoming report to members of the committee. We look forward to working with you to help resolve the Nation's growing drinking water infrastructure needs.
DRINKING WATER STANDARDS LITIGATION
Within the last several years, lawsuits have been initiated against public water systems for allegedly delivering contaminated drinking water despite the fact that the public water systems were in compliance with federal and state drinking water regulations. At this time, these cases are concentrated in California and have been subject to a unique California law. However, these type of cases could be initiated nationwide and undermine the SDWA drinking water regulatory program.
Public water systems are regulated under the SDWA. The regulations have been developed over many years based on the health effects of contaminants, measurement capabilities and technical feasibility. The 1996 SDWA Amendments require the use of cost and benefits in setting drinking water standards. The regulatory requirements were the product of extensive congressional debate concerning how best to develop drinking water standards to protect public health. Processes have been developed both at the national and state level to develop regulations based on best available science, costs and benefits.
This type of litigation could result in judges and juries setting drinking water standards that would vary across the nation. Standards could be far different from those set by federal and state agencies under the SDWA regulatory process. National uniformity of standards and uniformity within a state will be eroded. Public water systems facing uncertainty about which standards to meet will be pressured to follow the most stringent standard set by any judge or jury in the country to avoid liability. This will significantly increase the cost of water to consumers with very little, if any, benefit.
To protect the integrity of the SDWA regulatory program and prevent exorbitant drinking water costs to consumers, the SDWA should be amended to make compliance with federal and state drinking water standards a defense in lawsuits involving contaminants covered by such standards. AWWA urges this Committee to pass such legislation and will work with the Committee and others on this issue.
METHYL TERTIARY BUTYL ETHER (MTBE)
Although it is not the subject of this hearing, we believe that we would be remiss to not mention methyl tertiary butyl ether (MTBE) contamination of drinking water. MTBE contamination is an issue that cuts across the Clean Air Act, the Resource Conservation and Recovery Act (RCRA) and the Safe Drinking Water Act. MTBE contamination clearly illustrates the pitfalls of regulating within a statutory "stove pipe" and why coordination across programs is necessary within EPA.
The Clean Air Act of 1990 required that areas of the country with certain air quality problems use reformulated gasoline (RFG) with an increased oxygen content. MTBE is the oxygen additive most commonly used by the petroleum industry to satisfy the RFG mandate. Since MTBE is very soluble in water and does not "cling" to soil well, it has a tendency to migrate much more quickly into water than other components of gasoline. The use of MTBE has created a significant and unacceptable risk to drinking water and groundwater resources. At levels as low as 20 parts per billion, MTBE makes drinking water unfit for human consumption because of taste and odor. It should also be noted that MTBE has been detected in the taste and odor of drinking water at levels as low as 2 parts per billion.
In Santa Monica, California, seven wells supplying 50 percent of the water for the city were shut down because of MTBE concentrations as high as 600 parts per billion. It is estimated that it will cost the city $150,000,000 to develop new water sources. This does not include the cost of remediation and treatment of the contaminated wells. Cases of persistent MTBE plumes extending for kilometer-scale distances in the subsurface have been documented in Port Hueneme, California; Spring Creek, Wisconsin; and East Patchoque, New York. Recent testing conducted by the US Geological Survey (USGS) shows MTBE has been found in approximately 20 percent of the groundwater in RFG areas. As many as 9,000 community water wells in 31 states may be affected by contamination from MTBE. The data was from one-third of the wells in those states and is generally representative of the entire nation. Source water is being impacted from a variety of sources including pipeline leaks, spills, leaking underground storage tanks, and recreational boating on source waters.
For example, at my own utility in Manchester, we are finding low levels of MTBE in Lake Massabesic. While the levels are relatively low as shown below, the increases in the summer due to boating are clear. Additionally, Lake Massabesic is a well-protected watershed, with Manchester owning about 95% of the shoreline. Recreational use is limited, as there is not overnight docking allowed, and there are only 3 boat ramps with about 100 parking spaces total. Although these levels are relatively low, as previously mentioned in this statement, consumers with acute taste and odor sense may detect an objectionable taste and odor at the single digit level.
According to the report of the EPA Blue Ribbon Panel on Oxygenates in Gasoline, a major source of groundwater MTBE contamination appears to be releases from underground gasoline storage tanks. The EPA Blue Ribbon Panel on Oxygenates in Gasoline recommended enhanced funding from the Leaking Underground Storage Tank (LUST) Trust Fund to ensure that treatment of MTBE contaminated drinking water supplies can be funded. The LUST funds could only be used for contamination resulting from leaking underground storage tanks. Since leaking underground storage tanks appear to be the major source of MTBE contamination in ground water, the LUST Trust fund is an existing option to consider as a source of potential funding assistance for some cases of MTBE contamination of drinking water supplies in circumstances that meet the criteria of the law. As part of MTBE legislation, AWWA recommends that Congress amend RCRA to clarify the use of the LUST Trust Fund to provide alternative drinking water supplies or treatment for drinking water sources contaminated by MTBE from leaking underground storage tanks. AWWA is very pleased that Senator Smith has addressed this issue in draft legislation circulated on June 13, 2000. We thank Senator Smith and other Senators and staff for their assistance on this issue.
In testimony before the House VA, HUD, and Independent Agencies Appropriations Subcommittee and in a similar statement submitted to the Senate VA. HUD, and Independent Agencies Appropriations Subcommittee, AWWA recommended that Congress appropriate at least $100,000,000 for LUST to accelerate the clean up of LUST sites with priority for MTBE contaminated sites to prevent contamination of water supplies. There is a backlog of about 169,000 LUST site clean ups. EPA and the States have put increased emphasis on monitoring for MTBE as part of the Underground Storage Tank (UST) program so the number of MTBE contaminated sites may increase. Eliminating leaking tanks is an immediate remedy to protect drinking water supplies from further contamination until MTBE is phased out or eliminated.
Congress appropriated $70,000,000 for the LUST program in FY 2000. The FY 2001 President's budget requests $72,100,000 for the LUST program. AWWA strongly believes that the requested increase is not sufficient to accelerate cleanups of LUST sites that are difficult to remediate because they are contaminated by MTBE. EPA's goal for FY 2001 to complete 21,000 LUST cleanups is commendable but not adequate to address the immediate needs of millions of Americans who no longer can drink the water from their wells. An aggressive, high priority effort is necessary to cleanup sources of MTBE from leaking underground storage tanks as quickly as possible. AWWA is pleased that the House Appropriations Committee increased the LUST appropriation to $79,000,000 for FY 2001; however, we hope that $100,000,000 can be appropriated in the Senate.
Numerous bills have been introduced in Congress and draft legislation circulated that would amend the Clean Air Act to ban or phase out MTBE as a fuel additive. EPA has recently called for Congress to amend the oxygenate requirement in the Clean Air Act to ban or phase out the use of MTBE as a fuel additive. The EPA Blue Ribbon Panel on Oxygenates in Gasoline recommended action to amend the Clean Air Act to remove the oxygenates requirement and to clarify federal and state authority to regulate and/or eliminate the use of gasoline additives that threaten drinking water.
AWWA has developed the following legislative principles that will address the contamination of drinking water sources by MTBE:
1. Amend the Clean Air Act to significantly reduce or eliminate the use of MTBE as a fuel additive.
2. Ensure that air quality gains are not diminished as MTBE use is reduced or eliminated.
3. Require adequate research to be conducted on any replacement fuel additive for MTBE to ensure that a replacement will not contaminant drinking water sources.
4. Provide federal funding assistance to public water systems that have MTBE contaminated water sources for treatment or alternative water supplies.
AWWA recommends that Congress take swift action on legislation necessary to prevent further contamination of water supplies by MTBE or other fuel additives and provide assistance to public water systems that have MTBE contaminated water supplies. We look forward to working with Senator Smith and others to advance legislation addressing this critical issue.
CONCLUSION
We have covered a lot of issues in our statement today. Although much of the statement appears critical of EPA, we want to emphasize that EPA has made a good faith effort in other areas to implement the 1996 SDWA amendments. The agency's outreach and involvement of stakeholders in the regulatory process is to be commended. However, our concerns raised in how EPA uses science and cost benefit analysis in regulations are valid and are issues that bear watching by the Congress.
We look forward to working with the committee on MTBE and drinking water infrastructure issues. We thank you for your consideration of our views.
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This concludes the AWWA statement on the implementation of the 1996 Safe Drinking Water Act Amendments. I would be pleased to answer any questions or provide additional material for the committee.